[Jimmy-T]

Since your AGM is coming up, this situation may resolve itself.  There is a very clear process that must be followed at the AGM.

1.  First the meeting decides how many members there will be on the EC. In NSW this can be a minimum of 1 and a maximum of 9.

2. The Chair then call for nominations for the number of seats agreed upon. If there are more nominations than seats, you hold an election, based on all those voting having a vote per vacant seat (think of a sheet with, say, 12 names on it but you can only tick the number of boxes corresponding to the number of seats available). 

3.  If there are fewer candidates than there are seats, the Chair could start the process again, this time suggesting the same number of seats as candidates. Otherwise it is incumbent on the EC to identify and co-opt new memebrs to fill the vacancies.

This is what would happen if you didn’t have an AGM coming up.

Here is what the Act says about vacancies on ECs:

When a vacancy occurs in the office of a member of an executive committee … the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.

Note, there is no time limit on this but, for instance, if the last AGM agreed to have five members on the EC and someone who was eligible nominated themselves or was nominated, the remaining members of the EC are pretty much obliged to bring them on board until the next AGM when all seats are vacated and you start again.

Failure to do that would be grounds for an action at the CTTT to have an order issued to the EC to fulfill their statutory duties.

By the way, if the current chair uses an excessive number of proxy votes to reduce the numbers on the EC then elect only their cronies, they should be warned that these days the CTTT takes this as a sign of a dysfunctional EC, especially when there is an action to replace the EC (and owners Corp) with a strata manager. 

 

 

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.

[Jimmy-T]

The recent appeals Court ruling on repair and maintenance of common property could have a bearing on this issue, says strata lawyer Beverley Hoskinson-Green of Makinson d’Apice.

Part of the ruling in what is becoming known as the Thoo case, said that a breach of statutory duty by an Owners Corporation does not give an owner or occupier a right to sue the Owners Corporation for damages.

“It seems to me that, if a disadvantaged owner is not entitled to bring an action for damages against an owners corporation to recover loss suffered as a result of the failure of the owners corporation to carry out its mandatory statutory obligations, why would a disadvantaged owner be in any better position where the owners corporation is carrying out its mandatory repair obligations?’ asks Beverley.

You can read her summary of the Thoo case and its implications HERE

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.

[Jimmy-T]

If a by-law has been passed allowing security cameras viewing common property, you don’t need to put up signs to alert owners – although you probably should.

However, under Work Health and Safety legislation there shoud be signs up warning any tradespeople who may work in these areas that they may be under surveillance.

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.

[Jimmy-T]

That online voting system is pretty amazing.  You get it free for up to 10 voters and then it’s charged on the basis of the number of votes.

FYI, I punched in the number of lot owners in my building (132) and it would cost us about $220 for one meeting and about $350 for an unlimited number of meetings per year.

The one question that arises is the legality (or otherwise) of this system but I reckon that you would get round that by giving proxies to the chair on the understanding that he used the proxies according to the electronic votes. That ‘understanding’ implies an element of trust as proxy holders can pretty much do as they please with the proxies. (Apologies if all this has been thrashed out earlier.)

And, to be fair, the procedural niceties of AGMs are only ever relevant if someone challenges the decisions that have been made.  The Act does allow an adjudicator to revoke or nullify a decision if proper procedure hasn’t been followed – but they are also allowed not to take that action, provided the discrepancies in the vote would not have changed its outcome (see below).

Realistically, I reckon if everything is kept above board, transparent and as compliant with the law as possible, this is a great step forward, especially for small schemes with a lot of investor owners.

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.

(3)  An application for an order under this section may be made only by an owner or first mortgagee of a lot.

154Order where voting rights denied or due notice of item of business not given

(1)  An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:

(a)  was improperly denied a vote on the motion for the resolution, or

(b)  was not given due notice of the item of business in relation to which the resolution was passed.

(2)  An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.

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.

[Jimmy-T]

There has been a case in Sydney where a District Court issued a noise abatement order against the owners of an apartment that had noisy tenants in it.  The principle applied was that the owners knew about the problem, had the ability to do something about it (because the tenants were in breach of their lease by being breach of the by-laws) and had chosen not to do so.

I have never heard of similar ‘stretch’ being used in strata law but the mechanism is there, I believe.

Firstly, you have the question of who has to comply with By-laws and that’s overed in section 44:

44 Who is required to comply with the by-laws?

(1)  The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws:

(a)  had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and

(b)  contained mutual covenants to observe and perform all the provisions of the by-laws.

(2)  There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme.

And then you have the owners responsibility to make sure their lot isn’t used in such away as to cause a nuisance or hazard.

117  Owners, occupiers and other persons not to create nuisance

(1)  An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:

(a)  use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not) …

The question is, does rogue parking qualify as a “nuisance”, given that the word has a different meaning than merely being something that’s annoying? If it does and tenants were hit with a Notice to Comply for rogue parking and that was upheld at the CTTT adjudication then the landlords might just be in breach for not invoking their legal right to evict their tenants for breaching by-laws.  It may seem like a wrong way round a simple problem but for some tenants, paying a $200 fine for three months free parking (the average time it takes to go from a complint to a decision at the CTTT) is a bargain.

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.

[Jimmy-T]

@Kangaroo said:
Wouldn’t smart OCs never ever approve lot owner’s additions/alterations to CP?

Not very smart to prevent owners from upgrading their apartments or townhouses – just watch the values of properties in the building slide as it becomes known that basic common property related issues like kitchen and bathroom renovations are verboten.

Then all additions/alterations would be unapproved and the lot owner’s responsibility.

Only until the lot owner sold, and then they would become the Owners Corp’s responsibility (and they would have had no control over the work that had been done).

You wouldn’t need a big long register of SBLs.

No, but you would want a frequent flyer discount at the CTTT with the number of of “who’s responsible for what?” cases.

And the OC may even be able to charge the lot owner for removal of unapproved tiles stuck onto CP when they have to get at the waterproof membrane.

See above comment re frequency of trips to the CTTT.

Under what circumstances would an OC ever want to agree to being responsible for a lot owner’s changes to CP?

None that i can think of – but that is the default position of the Act in relation to Special Resolution By-laws. That’s why you have a Special Resolution By-law that transfers responsibility to the lot owner.  No by-law,  no renovations: it’s really that simple.

Where in the Act does it say that unapproved additions/alterations to CP suddenly change status and become CP when the lot changes ownership?

It’s not spelled out in the Act but the Owners Corporation is responsible for Common Property without limitation.  According to case law, that means if Joe Blow buys an apartment in good faith and the Owners Corp has failed in its duty to manage its property (by allowing the previous owner to do what they wanted without taking legal responsibility for it) then responsibility falls back on the OC

Theoretically they could pursue the previous owner through a civil action (not strata law) but the slim chances of success in terms of the cost of taking the action being substantially less than what they might gain make this an unlikely option.  Costs awarded by courts never cover the actual costs of a legal action and rarely if ever take into account the hassles and stress caused to individual EC members (for instance).

That’s why when you are selling an apartment these days you will probably be asked to sign a waiver saying you have not undertaken any unapproved changes to common property

Also, lot owners should be careful tiling balconies for the first time, or re-tiling over existing tiles, as this alters the effective height of the balcony rail, and may therefore breach building standards.

True.  However, many modern building have a ‘hob’ at the base of the balustrade that takes the effective height well above the legal minimum.

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.

[Jimmy-T]

I think this is precisely why the Strata Community Australia strata managers are urging buildings to firstly register for hook-up and secondly devise a plan so that they are ready to go when the NBN arrives.

To be honest, however, it looks like after September 7 we will be looking at the two tin cans and a piece of string option favoured by Mr Abbott (but not, I suspect, loved by his communications minister Mr Turnbull).  

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.

[Jimmy-T]

@Austman said:
The way I understand it, if you are in a house you will get NBN FTTH (fibre to the home) for free. The same might apply for some types of MDUs (eg townhouses) where an individual connection is possible. But if you live in an apartment block, and in some urban areas over 80% of people do, then FTTH will not be free for you. The OC will have to pay for the internal installation which will have to be done to NBN Co’s exact specifications.

And once the NBN comes into an apartment’s area, the OC will have little choice but to connected it because all the existing phone and internet services will be switched off 18 months later.

NBN Co – National Broadband Network – Australia | Apartments, townhouses, office buildings and the NBN

 

Austman, I just had a look at that link (thanks for that) and this is what it says:

NBN Co plans to connect all apartments within the NBN’s fibre coverage areas. These apartment buildings and other multi-dwelling units will often be connected slightly later than stand-alone houses in a fibre area.

This is due to the additional work needed for multi-dwelling units in terms of liaison between NBN Co and the body corporate, and the more extensive internal cabling within the building.

NBNCo are talking about hooking up apartments, not buildings.  Where did you read that Owners Corps will have to pay for backboning themselves.  My understanding is that NBN Co will pay for installation to the communication hubs on each floor of an apartment (where your phone lines are now) unless the Owners Corp refuses them access.

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.

[Jimmy-T]

Just to bring some clarity to this discussion (if I can), and bearing in mind that I am not a strata lawyer, this is my personal opinion.

Fixing the balconies is an Owners Corp responsibility.

Fixing or replacing tiles damaged in the course of any common property repairs is Owners Corp responsibility.

If the tiles were changed with OC approval via a special resolution by-law (SBL) – the Owners Corp would be responsible for like-for-like replacement. They have damaged someone else’s or their own property in the course of their repairs so they are required to fix this.

FYI: Under  the strata Act relating to special resolution by-laws, ongoing responsibility MUST be attributed to someone and the default position is  the Owners Corp UNLESS it is attributed to someone else.  Smart OCs attribute responsibility to the renovator as one of the conditions of approving changes to common property.

If the tiles were replaced without an SBL,  then the Owners Corp is only required to replace the ORIGINAL (probably cheap) tiles, not the fancy new tiles that may have been installed without permission.  

Smart OCs and owners would negotiate a mutually agreeable formula with owners who have unapproved expensive tiling whereby the lot owner would pay the excess over the cost of the replacement cheap tiles and the OC would pay the rest – in exchange for agreement of a catch-all SBL to make all previously unapproved tiling the lot owners’ responsibility henceforth.

 

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.

[Jimmy-T]

@just get on with it said:
JT – I assume Slap Shot’s first comment is referring to the “topic” being “EC and Strata Manager decided not to attend mediation”. 

Ahhh … silly me, didn’t have my thinking hat on.  As an old journo,  for me  the headline is a summary of the story – not the first line.  As an aside, I wish I could do something about people writing a novel instead of a topic title … but then I also have people going into the Parking Peeves section and writing “Parking Problem” as the headline. Yeah, we could have guessed that’s why you’re here.

Enough of my gripes! To get back to the subject in hand, it could cost the EC between $500 and $1000 to get the strata manager to prepare a response and attend a mediation.

Double that if you involve lawyers and double it again if the strata manager or lawyer is expected to respond to an adjudication.

As JGOWI says, the EC may be so sure of their ground that they have decided that it’s not worth the time and money  involved – although that could come back to bite them on the bum when the big bills come in further down the track.

 

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.

[Jimmy-T]

Your best bet is your own by-laws which may well have a clause regarding the appearance of private property – i.e. keeping it clean and tidy.  If there is one, sent them a letter (or get your strata manager to do so).  If there isn’t, call your local council’s environmental health department and ask if they can help.  Victorian strata laws are deliberately non-prescriptive so your own by-laws are usually your best bet  

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.

[Jimmy-T]

@SlapShot said:
I just wonder why they would do this?

Any legal reason? 

Does it fair badly for the EC and Strata Manager if they do not attend mediation and it goes to CTTT?

This is the first item in this thread.  What is it referring to?  Is it a posting on another thread.  If so where?  And why?

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.

[Jimmy-T]

If they have been issued with Notices to Comply, the next step is to go to the CTTT and fine them. If your EC isn’t prepared to do that, no amount of stickers is going to make any difference.

I will be dealing with the sticker issue in the next Flat Chat column so keep your eyes peeled.

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.

[Jimmy-T]

Strata law in Victoria has a few quirks that you won’t find anywhere else in Australia but Owners Corporation Act is clearly designed to allow owners corps to set their own standards for behaviour.

Rather than load up the Act with rules and restrictions, it lets strata schemes set their own parameters (within reason) through their by-laws but has a ‘catch-all’ law that if your schemes’ by-laws don’t cover a specific issue, then the model by-law provided by the Government does apply.

So, unless you have one that’s substantially different, the following by-law would apply:

5.2 Noise and other nuisance control

(1) An owner or occupier of a lot, or a guest of an owner or occupier, must not unreasonably create any noise likely to interfere with the peaceful enjoyment of any other person entitled to  use the common property.

But that gets us into the whole grey area of what is “reasonable”.  It strikes me that by installing tiled floors without adequate noise insulation (which you demonstrably have) the developer is guilty of selling you and your neighbours something that is not fit for purpose.  In Victoria, there is a time limit on structural defect claims of six years and non-structural defects of two years.

Assuming flooring is non-structural, I’d guess that time limit is already up for you or your upstairs neighbour to demand a properly insulated floor but if not, I would be looking very closely at that option.

Another option might be for the owners of the above apartment to claim that the common property flooring is defective and demand that the Owners Corporation fix it.

Whatever way you decide to go, there is a three stage complaints procedure in Victoria, which requires that matters be address in very specific ways via certain forms (available if you follow the above link).

In the first stage you have to make a complaint on the specific form and the Owners Corp must respond in wiring, even if it is to tell you that they are taking no action and why that is their decision.

You can then apply for mediation at Consumer Affairs Victoria (or via your strata plan’s internal dispute resolution system). If that doesn’t work, you can apply to the Victorian Civil Administration Tribunal (VCAT) for an order.

That said, these are lengthy and potentially distressing procedures that may cause you more grief than the original problem.  It sounds as if your neighbours are at least prepared to listen so how about approaching them with a proposal to share the cost of carpetting the floor (the most effective form of insulation around) or even of installing an acoustic ceiling above the worst affected room in your unit.

But before you do anything, it might be well worth talking to a lawyer who specialises in Victorian strata law – just to see what your realistic options are.

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.

[Jimmy-T]

Two questions: Are you in NSW?

Are you the landlord of the retail space?

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.

[Author]

Replies