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@Lyn Thorpe said:
How frequently MUST the buildings alarm systems be tested?Lyn
You haven’t told us where you live (which State) whether you are in a multi-storey high-rise or a low rise block, or why you are asking the question. More information please!
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This can indeed be a tricky situation as it’s difficult to know when allowing your neighbours a little leeway becomes counter-productive and extends a problem that should be resolved quickly and as cleanly as possible.
My recommendation would be a five-step process. The first time noise annoys you, you contact the neighbours and say, “Look, you probably don’t realise this but your party noises (or surround sound , whatever) are really disturbing …”
If it happens again, ask your Executive Committee or strata manager to send them a letter explaining that there are two sets of laws they need to be aware of. The by-laws of the building don’t allow anyone to make noise that disturbs another resident’s peaceful enjoyment of their lot at any time. Then there are the State laws that forbid noisy behaviour after 10 pm on weekdays and midnight at weekends. Both of these apply. If the EC or Strata Manager won’t send the letter, send it yourself and let the neighbours know that you don’t want to take further action but you will if the problem continues.
The next time it happens, you are justified in getting serious about this. Send a letter to your executive committee and/or strata manager explaining that these residents are in breach of noise by-laws and asking that a Notice To Comply be served on them. Copy this to the noisy neighbours. If the neighbours are tenants, explain that by being in breach of by-laws they are also in breach of their tenancy agreement and could be evicted. Warn them that if this persists, you will take action, albeit reluctantly, and inform their landlords about the problem.
If they continue with the bad behaviour, pursue the Notice To Comply with the Executive Committee or Strata Manager and contact their landlords or rental agent telling them that there is a problem and remind them that there is a legal precedent whereby landlords are responsible for the behaviour of their tenants and can have a Noise Abatement order served on them, the landlords, if they are aware of a noise problem but do nothing about it.
If the landlords, executive committee or strata manager won’t do anything to help, go to your district court and ask for a Noise Abatement order. If the neighbours ignore that, it is a contempt of court and the police definitely will turn up and shut them down and may even arrest them.
I realise this can cause a few weeks of bad feeling but that’s preferable to months of sleepless weekends. And perhaps if the opportunity arises, at some point you can sit down and talk this through with your neighbours. But when push comes to shove, all strata residents – owners and tenants – have the right to peace and quiet. Nobody has the right to make excessive noise and disturb others, whether they are in strata or free-standing homes.
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WINGATTACK said:
Whichever way one goes, I suspect it is a long and draining process, speaking as a new comer to strata conflict issues. Am I right? Should you maybe elaborate on the ‘emotional cost’ of undertaking on of these courses of action, please?
A Notice to Comply is quicker and easier (and I suspect, in the majority of cases, never even gets to the stage of a fine being imposed).
A CTTT order is going to take 8-12 weeks but may be the only option if, for instance, the miscreant is breaching the terms of the strata Act rather than merely a by-law.
And you’re right, there usually is an emotional cost, especially if your are on your own on one side of the dispute, but it’s impossible to quantify because some people would be shattered by the process of being taken to the CTTT while others might enjoy the fight.
So what it comes down to is how important it is for you to win the battle. If there’s a lot of money at stake – such as in the value of your home – then you might not have any choice put to pursue the issue. If it’s a matter of principle, then you have to ask yourself why you would even bother.
I hope that in laying out the process, and providing the readers with a sense of what’s involved, they can make their own judgement about the emotional cost. You’re right in that it should be considered but it’s not something anyone can easily predict.
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Having explained the differences between the Notice To Comply versus the CTTT order, I thought it was incumbent on me to offer a simple step-by-step guide to each of them with links to the relevant forms and factsheets.
Hope this helps – and please let me know if anything in it appears to be wrong or there are broken links. This will ultimately have its own page but for now it’s on the front of the website HERE.
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The smart way to do this is for the developer to approach each owner and offer them a provisional deal whereby they say, I will give you, let’s say $20K right now if you agree to sell the apartment to me at such and such an agreed price provided everyone else agrees to sell by a certain date. If the others don’t agree to sell, then you pay me back the money, interest-free.
That way there is a legally binding pathway for the developer, a premium built into the purchase price and a lot of peer pressure on the other owners not to hold out for silly money.
At worst, the developer loses the amount of interest on the ‘loan’ that they would have got had they kept it in their own bank account.
Apparently this is going on right now all over Sydney. A more cynical developer would buy up the majority of apartments in the building then start demanding that expensive building work be done, forcing the other owners to sell. This is also happening around town.
But KP is right, this has nothing to do with extinguishment of strata since, if the developer owns all the units then they can do what they want with the building.
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Just to clarify, when you say you’ve ‘called strata’ – do you mean the executive committee, the strata manager or the building manager?
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I think we’re on the same page here and that’s why I suggested an assessment be done and then work begun as quickly as possible. In Victoria, that assessment would include establishing where liability lay before work was done that might obscure where the original problem existed.
Also getting back to the original question, compensation for the loss of amenity, in NSW that would probably have to be pursued at the Supreme Court on the grounds that the CTTT doesn’t appear to have the capacity to award damages of this kind.
That’s a lot more expensive a proposition than a CTTT case and you would have to be sure that you would win damages and costs to cover the cost of the case (you never get all the costs back, even if all costs are awarded).
However, there is another option worth exploring, under section 146, you can ask the CTTT to impose an order instructing a “person” to make an insurance claim. That person in this case would be the EC. This would at least get you into the mediation phase where all the issues could be thrashed out.
The fact of the matter is that even if you took this to the Supreme Court, the Owner’s Corp’s insurers would become involved. This approach might short-cut that process, bring the insurers in earlier and they might make the decision that it was cheaper and easier to pay up.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.
Austman said
Nothing to do with following the law. Nothing to do with the developer (because it actually it has to be the builder in VIC). We understood all of that.
It’s the process of getting repairs done if some owners want to pursue the builder’s warranty insurance before paying lots of money themselves. And that’s a fair enough stance too – it is supposed to work that way – after all, the OC didn’t cause the building defects, the builder did!
So you’re having a go at me for pointing out how it actually works here in NSW rather than how it’s supposed to work? And yet you’ve discovered that in your situation waiting for the warranty issue to be resolved was a waste of time and probably money too.
In this regard, there is very little difference between NSW law and Victorian law which says:
46. Owners corporation to repair and maintain common property
An owners corporation must repair and maintain—
(a) the common property; and
(b) the chattels, fixtures, fittings and services related to the common roperty or its enjoyment.That’s an absolute and unqualified legal responsibility and that’s why Bodies Corporate in Victoria have to think first about fixing defects and think afterwards about who should pay for it and how you are going to get them to do that. (By the way, if anyone knows of case-law that disproves this PLEASE let us know.)
Plenty of owners In the no-mans-land of defect disputes think it’s only right that you get the money from the builder/developer first and fix the defects later. And some members of ECs use the idea that they are in negotiations with the developers or builders as an excuse for not fulfilling their statutory duties (at least until they have sold up and it’s someone else’s problem).
So my advice for any owner who’s trapped in a defective building is to demand that a program of works is sorted out, regardless of the progress of any defects claim. If the EC or OC refuses to do that, take them to the CTTT (in NSW) and ask that an order be made against them to fulfill their statutory duties.
If you are on an EC and your building has defects, get a reliable building consultant (like our sponsors IBC) to do an assessment of the building defects and take that report to the developers and ask them to fix them.
When they refuse, raise a loan to get the work done while pursuing the defects claim through whatever channels are available to you. The Building Consultant will become your project manager and they will make sure everything is done by the book.
At least then if you do end up in court against the developer you will have irrefutable evidence that things needed to be fixed, and how much it cost when they were fixed and that the developer refused to do it which is why you went ahead and did the work yourselves.
And if, because the system is stuffed, you end up not getting your money back, at least your defects have been repaired which is what you would have ended up doing in the first place.
The Owners Corporations’ (and, in Victoria, Bodies Corporate’s) prime responsibility is to maintain and repair common property – not necessarily to sue developers and builders. Individual owners who want insurance money first and defect rectification later need to have the facts of life explained to them and, if need be, feel the weight of a CTTT order to convince them of the error of their ways.
At the end of the day, you have to fix the defects – you may as well get on with it and use it to your advantage if you possibly can.
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I can tell you that it has been established in the Supreme Court here in NSW that pursuing developers for defects claims is not considered maintaining and reparing common property as required under strata law. In other words, the OC has to fix it regardless of what else is going on – they just need to make sure they follow correct procedures with assessments,quotes and contracts so that there can be no quibbles when they do make a claim.
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I’ll agree with excathedra, in the main. Letting people know that permission has been sought and granted is a good idea but I wonder if it might become cumbersome. Perhaps a permit display system would be needed if this was a regular occurrence.
On a general note, the OC or EC can do what they want with common property provided they pass the appropriate by-laws and they aren’t in conflict with superior laws. For instance, a common property visitors parking spot can’t be sold or let to an owner if its establishment was part of the Development Approval.
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Welcome. Seems like a fine idea and we’d be glad of your input, especially on Vic-specific issues – we know you do it all differently down there.
By the way, your link to your website didn’t work so I fixed it. Might be worth looking at when you send it our elsewhere.
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So, Wingattack, are your ‘faceless men’ similarly on public display or is this selective exposure.
‘Naming and shaming’ is perfectly legal under the very limited application of privacy laws to strata – the owners’ legal right to know what’s going on in their community supersedes anyone’s mostly imaginary right to privacy.
However, most ECs exercise a degree of discretion, either not identifying residents at all or referring to them merely as the owner or tenant in Lot XX (on the basis that most people don’t even know their own lot number, let alone other people’s).
You could always get your revenge by insisting that all planters that are adjacent to balcony balustrades be removed as they render the balcony non-compliant with OHS laws about the relative height of the balustrade and the balcony floor. I.e. small children could climb up and fall over.
But then you would be at war with your neighbours – and, trust me, it ain’t worth it.
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