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@Austman said:I think you’re lucky not to be fined. I think you should also apologise to the OC.
And I think everyone needs to get off their high horses. The person at fault here is Liam’s idiot (ex) friend who not only doesn’t bother to read his building’s by-laws but doesn’t read notices from the building management. He ain’t exactly Robinson Crusoe in that regard.
The real issue here is how Owners Corps deal with “abandoned” goods. There is no clear regulation on that (unlike in the residential tenancy Act).
I recall in my first rental, finding that the resident owners had decided that they and they alone were entitled to use the storage space and we caught them in the act of loading a locked trunk full of our personal stuff – with labels all over it saying who it belonged to – on to a skip for disposal. “You’re a tenant and we didn’t know whose it was,” the brass-necked martinet from the EC said when challenged.
So let’s get back to the initial question. In the absence of any clear evidence of where the bike has gone, I believe Liam or his mate could claim on theri home and contents insurance becasue the bike has been stolen since a) it’s not there any more and b) no one knows where it is.
Let’s talk about that. Any further derogatory comments will be spiked because I will not allow this forum to turn into a squabble-fest.
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@Unit Dweller said:
Would you have any recourse against the EC for failure in their duty of care to ensure that the amenities of your unit are not compromised by “the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner of another lot (current model by-law under the Act)?Two things – the only by-laws that are relevant are those in place in your building. The current model by-laws have no standing unless they have been adopted as your by-laws. (As I write this, a little voice is telling me that perhaps if there is no by-law specific to an issue then the appropriate model by-laws apply – I will check this out.)
Secondly, the recent ruling in the Thoo case at the Appeals Court basically said that you can’t sue an Owners Corporation for damages for failure to fulfill its statutory duties (although you might be able to sue for negligence). THIS factsheet from Mills Oakley lawyers explains the decision in detail (and, inevitably, in legal language).
Having failed to head the timber floor off at the pass, all you can do now is prove that its use is an unacceptable disruption of the peaceful enjoyment of your lot. It can be done and it has been done many times – but it takes a lot of legwork, some serious information gathering and a bit of luck to get there.
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Ah, Liam,
I thought my Flat Chat buddies were a little harsh too, but I know where they’re coming from.
To put it in context, once you have lived in or run strata schemes for a while, you get weary of people who park in the wrong places, leave stuff lying around for others to deal with and generally take advantage of others’ good nature. It doesn’t take long for the tolerance threshhold to wear thin.
Your pal is a numpty and deserves to lose the $700 (if not your friendship). I’m guessing your friend’s neighbours – or their building managers – were just trying to maintain a little order in their homes. To some, a mis-parked bike is the thin end of a wedge that leads to mayhem and chaos. You would be astonished to know how much stuff is just left behind by people – owners and renters – who have no further use for it but can’t be bothered to dispose of it properly.
Every couple of years my building does an audit of all the bikes in our storeroom. Every time up to a dozen bikes are discovered to have been abandoned by their owners who have either traded up or moved out (or both). Those bikes are then handed over to a charity that sends them overseas.
There are a number of charities that recycle bikes for use either here or abroad. So console yourself with the thought that your bike is probably making a big difference to someone else’s life right now.
And if anyone is interested in finding a re-bicycling (pun intended) program, click on THIS LINK to learn more
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OK, but that would exclude tiled floors. See below for my similar but broader search suggestions
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While we have a track record on this Forum of hammering people who lay down timber floors and expect others to deal with the noise, there is an area that we haven’t really explored and that’s increased sensitivity to noise that some people acquire with age or hearing damage.
A dear friend of ours (now departed) suffered from this and she drove her neighbours mad with her banging and shouting at them to try to get them to be less noisy. It was terribly frustrating for both them and her.
As THIS website shows, increased sensitivity to noise is a fact of life for some people and can be a result of damage to hearing and/or simply ageing:
Here are some symptoms listed by the website:
Very quiet sounds are well tolerated, while ordinary sounds like voices at conversational volume are experienced as too loud or distorted.
The person’s own voice seems too loud or distorted.
Low intensity sounds, such as the noise of a refrigerator, seem too loud.
Sudden, loud noise can cause discomfort and pain.
A loud noise can worsen sound intolerance for some time.
Loud noises can worsen tinnitus and distortion.
Loud noises can cause a ‘popping’ sensation inside the ear.
Now, there is no way of knowing whether the downstairs neighbour in this scenario suffers from this but I would think it would be worth checking out.
So, in the first instance, I would be writing to the rental agent and strata manager to say that you genuinely don’t believe that you are creating excessive noise and you are concerned that your neighbour is suffering from a common medical condition that causes oversensitivity to noise.
To help establish the facts, you are happy to allow acoustic testing to be done while you go about your daily life, provided the downstairs neighbour avails herself of a medical test for noise sensitivity.
There is no cure for noise sensitivity but there are ways that it can be moderated which makes everyone’s lives more livable.
And i think this gives you the opportunity to show you are sympathetic to your neighbour without caving into complaints that may turn out to be genuine but unreasonable.
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By the by, I believe the new strata laws are going to include rules for dealing with abandoned goods, bringing them into line with the laws governing goods left at the end of a tenancy.
These rules will included the storage and return of removed goods in exchange for the payment of a fee for storage.
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@Unit Dweller said:
Hi Fellow Flat ChattersIn doing some research on Hardwood flooring issues, I sought to find CCCT decisions on unacceptable noise created through such floors.
The Dept of Fair Trading directed me to a sample of selected CCCT cases provided on AUSTLII, and so had to go through all those that related to a Strata issue.
Does anyone know of a way of getting to a more comprehensive list of cases that has the Strata issue considered within a case identified up front – so that I could zero in on those covering Hardwood or Flooring issues.
Go HERE, select a year from the list, then go to the drop-down search menu (defaulted to Boolean) and select “all words”, then type ‘floor strata’ and click on ‘search’.
That will give you a list of all the cases that involve strata schemes and flooring (but cuts out the alarming number of claims made by customers against flooring companies).
When you’re done, go back and select the previous year until you have found enough cases for your purposes.
Hope this helps
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@gin said:
We’ve an ec member who is using her car space as a make-shift ‘storage room’ and in turn, ‘parking’ her car in the Visitors’ car space, instead.We only have 2 Visitors’ car spaces and she is now permanently parking in one of them. The other is being used by a tenant, with 2 vehicles and a motorbike.
So over Christmas & New Years’, especially, no other occupiers’ Visitor’s had anywhere to guest-Visitor-park.
Besides it looking extremely unsightly; at least 30-odd boxes, old bikes, old gym equipment, clothing, etc … wouldn’t you think an ec member would be more considerate ?
Any Insurance issues do you think ?
Are you ready to make yourself a lifelong enemy? Or, to put it another way, how strongly do you feel about this. Firstly, neither the tenant nor the EC member should be parking in visitor spots. They have granted themselves free parking which these days we call ‘parking theft’. Do you have a by-law about who can and can’t use your visitor parking? If you have, dig it out and see what it says. If you haven’t then you shopuld suggest you get one at your next AGM.
Regarding the storage issue, you may well also have a by-law about what can and can’t be kept in the garage area but in any case I would guess that your local council fire safety inspectors would be appalled if they say piles of junk lying around in a car park.
So, getting back to making an enemy for yourself, maybe you should quietly find out if anyone else in the building is annoyed by this then send a jointly signed letter to your EC and strata manager saying you want the visitor spaces to be free for bona fide visitors and a by-law to state the conditions (how long cars can stay there).
Pushing the EC member out of the visitor space may solve the problem of the junk when she needs to find somewhere to park her car.
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Wouldn’t it be easier to ask your insurance company what they would do if an uninsured tradesperson injured themselves because they weren’t using the correct safety equipment?
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@Tony said:
Thanks again KP and Jimmy – here is a copy of my email to the CMS today :-What is the CMS? There are so many acronyms and abbreviations, you really need to spell names out the first time you use them or we have no idea what you are talking about (if it’s a company we could all be in trouble!)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.
I don’t know why you would shy away from this appearing in print as it’s far from unique and if your secretary does read it, she might give herself the required shake-up. (However, I will respect your wishes)
First of all, your strata manager is not entirely correct in saying he can only take instructions from the EC. In fact SMs superior instructing body is the Owners Corp meeting in general meeting.
The SM is right about day-to-day stuff but if you feel strongly enough about this, you can hold a general meeting to issue new instructions to the EC and the strata manager and, if you have enough support, to remove the secretary completely.
A simpler way would be to put a option on the agenda of the next EC meeting to declare the position of secretary vacant and ask the EC to choose a new one. You can then present your case at the EC meeting (if the secretary even chooses to fight it).
You can call for a general meeting (if you can raise 25 percent of the votes in the building) and then try to get a special resolution passed (by 75 percent of those voting at the meeting) to have the secretary removed from the EC altogether.
Or you can wait until the new strata laws are enacted in July this year (allegedly) and have a general meeting and vote in a new secretary.
Or, and this may be the most effective solution, you can get a number of owners to sign a letter saying you are unhappy with the job the secretary is doing and ask her to either lift her game or resign.
I would add that if she fails to do either, there are a number of avenues available to owners to remedy the situation, down which you would rather not go as they are potentially damaging to the scheme – but not as damaging as doing nothing.
Also, and this is important: you want as many names on that letter as you can get or it will be dismissed as the rantings of one disgruntled owner, rather than a genuine effort to have the building run properly.
One final note, if the secretary doesn’t have the time to do the job properly – and we are all busy people – she should step aside and let someone do it who does have the time.
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I don’t see this as being very different from my current building, where we put storage cages in unused common areas and then rented them out to owners. The collective benefit to the owners corp was the income from an otherwise unused common area. It was all mostly legal until our popinjay chairman decided arbitrarily that when they voted on raising the rental of the storage spaces, people who were renting them were excluded from the vote while those who were on the waiting list for storage were allowed to vote – all of this in the interest of “fairness”.
I think ‘differential levies” is a minefield that you really don’t need to enter. It may not be legal (or at least legally tested) but I wouldn’t fix it until someone complains that it’s broke.
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kiwipaul said
You can use these unapproved alterations in your case at CTTT to show the unreasonbleness of the objections. Also if a neighbour had to give approval for any building that affected their view the building industry would grind to a halt.
KP is absolutely right and the mechanism you could use to force the EC’s hand is an order by the CTTT under section 158 for them to impose a by-law on the grounds that you are prepared to accept the cost of ongoing maintenance but the Owners Corporations are being unreasonable in their refusals, delays and the conditions they are imposing.
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.
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@kiwipaul said:
@OverIt said:
Thank you will check the contract but I believe no that those duties are not delegated.That surprises me because who creates the admin fund budget / sinking fund budget the EC?? that you vote on at the AGM.
Does the EC formulate the agenda for the AGM and then send it to the SM for distribution, if so why bother having a SM when the EC is doing the SM job.
In most situations the SM creates the Agenda for the AGM covering all the basic requirements of the act and adds any motions that the owners or EC submit for inclusion.
The last scenario is pretty much what happens in buildings where there is an active EC, but that doesn’t mean the strata manager decides what’s in the budget or agenda. There are certain statutory requirements that the strata manager must either fulfill or insist that the EC does so. One of these requirements is the inclusion of any motion submitted by an owner prior to the agenda being distributed. In that respect alone, you can see that the strata manager does not set the agenda.
The strata manager also assists in the formulation of the budget – again with an eye on statutory requirements – but does not decide what the budget is or what the levies required will be.
The relationship between the strata manager, especially in larger buildings with active ECs, is not necessarily ‘either or’ and in fact is more likely to be the two working in conjunction to get what the EC wants and what the legislation requires.
But to reiterate what has been said earlier, the strata manager does or should do what the owners corp and EC want and not the other way round. And even in those fairly common situations where the Strata Manager has been given delegated powers, the Owners Corp or EC can over-ride their decisions.
So, the strata manager may help formulate, type, print and distribute the agenda and budget for the AGM but that is only with the tacit agreement of the EC’s secretary and treasurer, respectively.
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The sensible way to deal with this is to establish how many ‘neutrals’ are prepared to stand (and serve) and add that to the number of rusted-on members and that’s your membership number. It’s all about talking to people nd that shouldn’t be too hard in a small block.
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