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The Strata Schemes Management Act specifically forbids owners from creating “nuisance” and I think the amount of smoke and the positioning of the barbecue falls well within that category. The Act also forbids owners from interfering with other residents’ peaceful enjoyment of their lot. Agaim this seems like a clear breach.
Your first option is to explain to this person that they are breaking strata law on two counts – creating a nuisance and interfering with the peaceful enjoyment of another owner’s lot (see below) and ask them to move the barbecue. Or you could ask the EC to do this on your behalf.
If the downstairs neighbour refuses, you can ask the EC to issue a Notice To Comply on those grounds. This carries a fine of up to $550 for non-compliance.
If the EC declines to get involved, you can go to Fair Trading and the CTTT yourself to ask for an order against the owner.
Obviously, option one is the best but if it doesn’t work you will find out how to pursue this either as a Notice To Comply or as a CTTT order HERE.
Meanwhile, here is the relevant section of the Act.
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), or
(b) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
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Assuming you are in NSW, under section 62 of the Strata Schemes Management Act, the Owners Corporation must maintain and repair common property – no excuses and no exclusions.
I would be telling the strata manager to get this sorted NOW or your next step will be to go to the CTTT where you will be seeking an order to have the work done and possibly also asking for compensation for the loss of tenants.
I would also, quietly, be wondering about the competence of a strata manager who doesn’t understand this most fundamental of strata laws.
If you are not sure how to go about seeking an order, click HERE and scroll down to the section on CTTT Orders. There you will find a description of the processes involved and links to the forms required.
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@Whale said:
… on the subject of Owners renovating their Lots, … the NSW Strata Schemes Management Act … requires those Owners to seek the Consent of their Owners Corporation O/C) in advance of those renovations commencing, a Consent made by way of a Special Resolution at a General Meeting is only necessary where the proposed works involves an addition or alteration to, or the erecting of a new structure on the Common Property, and a Special By-Law is subsequently necessary only where the O/C wants to make those Owners responsible for the on-going maintenance, repair, and replacement of whatever it is that they’re adding, altering, or erecting and they agree to that.I’mm 100 percent with Whale on this but, just to clarify, in the majority of examples such as those cited by KiwiPaul, such as a kitchen renovation, the lot owner only has to ‘inform’ the EC 24 days before they commence work, provided they aren’t making changes to common property.
Many kitchen do-ups use existing piping etc so there is no need for a special resolution by-law. If there is a more extensive renovation going on, I want to know what effect that will have on common property and I want legally binding guarantees that the lot owner and any subsequent purchasers will be liable for any stuff ups.
Yes, the system could (and probably will) be streamlined. But KP’s fears of a new by-law every year are not borne out by the “real world” experience here in NSW. I my duilding i can hear work going on and know that it will either be pre-approved by the EC, via a catch-all by-law, or the miscreants will be dragged off to the CTTT for ignoring the by-laws.
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@LotsaStairs said:
I think it may come to the point of getting a strata specialist lawyer.
Call Suzie Broome of our sponsors Makinson d’Apice on 02 9233 9018 or email sbroome@makdap.com.au.
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@Dudley said:
If there are 4 owners, with equal voting entitlements, and 2 are for and 2 against the special resolution – what are the next steps?
Your special resolution would pass with 3 of the four votes on the basis of the “not more than 25 percent voting against” rule. Lobby hard!
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If there are clear anomalies with the way the building is being run and the way common property is being managed you can apply to the CTTT for a order, forcing the Owners Corp to pass a by-law to put things right. You’ll find out how to apply to the CTTT for an order HERE.
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- If the gazebo and/or pavers are subsequently damaged as a result of a failed common property retaining wall is the OC responsible for the repair?
The gazebo and pavers are personal property damaged by a failure of common property (or in the course of work done to effect a repair) so the Owners Corp has to pay. The interesting question would be if the gazebo was damaged in, say, a storm.
But this is something you need to have tidied up in your by-laws as soon as possible. A by-law granting permission to keep the gazebo on pavers provide the gazebo owners accept responsibility for the structures and the common property on which they sit should be passes ASAP – or the gazebo owners should be asked to remove it.
And the very good reason for doing that is that if and when the current owners move on, the structures will become the responsibility of the owners Corp.
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@Mojo said:
Hmmm. Sounds fishy. Surely it’s been rigged??
My initial reply to this got lost in the great Flat Chat Crash of Friday August 9th so here goes again.
Not rigged but is it scientific? No more or less than any other informal polls, given that the majority of polls should carry the disclaimer “according to the kind of people who respond to polls …”
I have been told that these figures were collated from responses by people registered to domain.com.au plus those who took part in an online survey.
So in answer to the question, how scientific is it, you’d have to say “not very. But how significant is another matter. What we can reasonably assert is that a lot more tenants seem to be happy with their landlords than you might think. And that, really, is as much as you can take from this – it’s just nice to have something positive to report about rentals, for a change.
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In a word, yes. Go HERE and scroll down to the section on CTTT orders there you will find links to all the information and forms that you need.
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In our building the internal smoke alarms are unit-only but the external ones (in common areas like lift lobbies) are hard-wired to the fire board and linked to the Fire Brigade – as we discovered when someone left something on their stove and opened their apartment door to clear the resulting smoke. Fire Dept arrived as did the bill for the call-out.
In this case, it sounds like a common property system (albeit within a lot) and that means the OC are responsible both for fixing it and the cost of the call-outs until they do.
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@mattb said:
I agree with your stance on this … however, all you need to prove is that OC didn’t remove the railing itself, nor did the OC grant permission to the previous lot owner to remove the railing.I also agree that the claim is outrageous but I disagree that the OC has no liability if they didn’t approve the changes. The strata manager is absolutely right; even if the Owners Corp hasn’t allowed the changes to the balcony, they are liable for its upkeep. In fact, it could be argued that permission was tacitly given in so far as a balcony must be pretty obvious from outside but was allowed to be changed without comment or complaint.
The current owner has no liability as they bought the property in good faith. The only hope that the OC MIGHT have is to effect the repairs (as they are legally obliged to do) then pursue the previous owner in a civil action for damaging common property. I’ve never heard of that being done and I’m not at all sure of its likelihood of success but if the previous owner is no longer in the strata scheme that may be your only hope. Otherwise, suck it up and tighten up your compliance procedures for future reference.
We’ve encountered cases where, for instance, unauthorised changes to common property were made – sliding doors changed to bi-folds – which could only have been seen if you took a boat out into the bay at Bondi. When the bi-folds failed, the OC’s only options were to repair them (at considerable cost) or restore the sliding doors at their own expense.
This is a very compelling argument for NEVER letting changes to common property go through on a nod and a wink. It’s also why, excessively bureaucratic as it may seem, you need changes to common property within a lot to be approved by a by-law that shifts the responsibility for continuing upkeep to the owner making the changes.
Also, I would suggest that every time a strata property is put up for sale, at least one member of the EC should have a quick squizz at viewings and make sure that there’s something on the record that Common Property has been altered and that the current or subsequent owner is responsible for its repair.
A quick EC meeting issuing a Notice To Comply would put the issue on the record, at the very least.
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@SmileyHouse said:
Thanks guysI read Jimmy T’s article some months back around this issue, perhaps my reading was incorrect. Jimmy mentioned that if a tenant moves out citing works that the strata is commencing then owners have the right to claim loss of rent from the Owners Corporation.
This is a very grey and contentious area which falls between the stools of collective responsibility and individual rights. You have a “right” to take any action you wish but there’s no guarantee that it will either be successful or, if it is successful, that whatever damages you win outweigh the financial and social cost of taking the action.
My rule of thumb would be if everyone is suffering a similar level of disruption then your claim is unlikely to succeed. However, if one owner is carrying the can so that everyone else can benefit, then there might be reasonable grounds for a claim for compensation. And it’s at this point that I strongly advise you to have a chat with a lawyer (just click on the ad above, if you’re not sure who to call).
Strata law is not the be-all or end-all in disputes. It is subservient to other laws and it is not unknown for strata owners to step outside the Fair Trading/CTTT nexus in search of a more equitable outcome, via the District and Supreme Courts, for instance.
However, if you felt you were being unfairly treated, you could raise a complaint at Fair Trading, the first step of which would be mediation. One argument you might make is that the Owners Corp had acted incompetently, causing you greater financial stress than was necessary.
But, really, if you want to take this further your first step should be to call a strata lawyer and ask them what they think.
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@Whale said:
So actually, the answer to your question is NO, neither the Executive Committee nor the Strata Manager can grant permission for exclusive use.
I somehow managed to skip over the bit about Executive committees and strata managers so my answer, as Whale points out, should have been “no” – but the rest of my answer is fairly sound.
As we revealed recently HERE, the cunning plan of getting yourself on to the EC so you can award yourself free parking in perpetuity ain’t gonna wash. It has to be done by a by-law at a general meeting with no more that 25 percent of those voting doing so against the motion.
Good save, Whale, and technically absolutely on the money. Ever thought of being a third umpire for the cricket?
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At the risk of being accused of pimping, click on the ad for Integrated and call them – they’ll not only point you in the direction of a choice of good builders, they’ll make sure you are getting the best advice.
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