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Yes, rental agents can be the pits. Considering the proportion of renters who live in strata, you’d think some Real Estate company, somewhere would get their agents to at least learn the basics of strata law – like fulfilling their obligation to provide tenants with an up-to-date set of by-laws, for a start.
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Whale said
I represented our Owners Corporation (O/C) at the Consumer, Trader, and Tenancy Tribunal (CTTT) on an occasion when we had issued tenants with a Notice to Comply, the Adjudicator acknowledged that the tenants had breached the By-Law (which infers a requirement to comply), but dismissed the matter as the tenants claimed that they hadn’t been provided with a copy of those By-Laws by their Property Manager.
And this exactly is why no one has any faith in the CTTT as any kind of even-handed arbiter of strata issues. I think these CTTT bozos see the word “corporation” and think they are doing the world a favour by protecting poor individuals against great heartless institutions. Try using ignorance of the law as an excuse the next time you are caught speeding or park illegally or thrash a CTTT adjudicator black and blue with a copy of Strata Living. “Oh, is that against the law? Nobody told me.”
It says on the rental agreement that the tenant has to be given a copy of the by-laws. If they’re not given a copy, they should ask for it. And surely when they received a Notice To Comply, which must stipulate the by-law that has been breached, that should have been enough of an incentive for them to go and seek out a copy of the by-laws.
There’s an idea for all you badly behaved tenants out there – just claim no one gave you a copy of the by-laws and, according to the CTTT, you can do as you please. Sigh.
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Hi DTA
I wonder why you are assuming this bird owner is you – LadyJ did say this particular bird had only been acquired recently.
Also, it’s up to the tenant to seek any required permission for a pet, not the landlord – they can’t be held directly responsible for the behaviour of a tenant’s pet (unless there is a complaint and they don’t do anything about it.)
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@Kangaroo said:
In fact, there’s nowhere in the SRTA which requires the tenant to obey the strata By-Laws. A big failing!
The SSMA section 44(2) seems to oblige tenants to obey the By-Laws, but what tenant has ever read the SSMA?
Section 44 (below) quite clearly requires tenants or lessees (and sub-lessees, for that matter) to abide by the by-laws. Ignorance of the law is no defence and the residential tenancy agreement highlights whether or not there are by-laws.
Here’s what section 44 says (my emphasis):
44Who 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.
(3) In this section, lessee means, in relation to a lot in a strata leasehold scheme, a sublessee of the lot.
In other words, if you live in a strata scheme – whether as an owner, a renter or a room-mate – you are obliged to obey its by-laws, as if you had sat down, read them and signed off on them yourself.
However, there is a grey area which I am currently investigating – does non-compliance with by-laws constitute a breach of the lease agreement?
We’ve always said it does, and reading the residential tenancy agreement seems to suggest as much, albeit indirectly, but it’s not spelled out.
We’ll keep you posted.
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So, Austman, are you saying that the Tenants Union link doesn’t count? Perhaps you’d like to take a look at this Fair Trading NSW information page which says:
When a property is put up for sale
If a landlord notifies their intention to sell the premises during the fixed term of a tenancy agreement and did not disclose the proposed sale before signing the agreement, the tenant can terminate the lease with 14 days notice and doesn’t have to compensate the landlord for the early termination.
Just because Fair Trading doesn’t mention something in one document doesn’t mean it isn’t mentioned elsewhere.
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You only have to give 14 days notice to end a tenancy where the landlord has decided to sell and didn’t tell you this before they signed the tenancy agreement with you. No compensation is required. Have a look at this Tenants Union Factsheet. The information is near the bottom under the headline “Extraordinary Grounds”
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Assuming this is NSW, my understanding is that the Strata Manager is legally obliged to charge 10 percent penalty interest on unpaid levies.
Also, all costs associated with recovering strata debt are payable by the defaulting owner so the “costs more than it’s worth” argument is spurious.
Time you called in the debts – and there are plenty of reputable agencies that specialise in strata debt collection – and then thought about getting a Strata Manager who knows what they are talking about.
You’d have to wonder how many other issues they casually drop in the ‘too hard” basket.The levies arrears should have been noted in the accounts statement prepared for the AGM. If they weren’t there, the Strata Manager needs to explain why. If they were there, your solicitor needs to explain why you were charged for an incomplete search.
Meanwhile, this is what the Act says on Levies:
79 Interest and discounts on contributions
(1) Any contribution levied by an owners corporation becomes due and payable to the owners corporation in accordance with the decision of the owners corporation to make the levy.
(2) A contribution, if not paid at the end of one month after it becomes due and payable, bears until paid simple interest at an annual rate of 10 per cent or, if the regulations provide for another rate, that other rate.
(3) However, an owners corporation may by special resolution determine (either generally or in a particular case) that a contribution is to bear no interest.
(4) An owners corporation may, by special resolution, determine (either generally or in a particular case) that a person may pay 10 per cent less of a contribution levied if the person pays the contribution before the date on which it becomes due and payable.
80 How does an owners corporation recover unpaid contributions and interest?
(1) An owners corporation may recover as a debt a contribution not paid at the end of one month after it becomes due and payable, together with any interest payable and the expenses of the owners corporation incurred in recovering those amounts.
(2) Interest paid or recovered forms part of the fund to which the relevant contribution belongs.
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Check your by-laws. If they are anything like the standard by-laws, you will have one that says owners can’t interfere with the peace and quiet of other lots and there will probably be one that either restricts pet ownership or establishes condition under which pets are allowed.
I’m betting both by-laws have been breached. What you need to do now is write to your EC and ask the the offending owners be asked to keep the bird quiet or a Notice To Comply will be issued, which will lead to a fine
You can read ab bit more about the complaints procedure in my current editorial HERE
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An owner who appears by Skype is not considered to be ‘present’ under the current law but that can easily be remedied by them providing a proxy so someone can vote on their behalf.
At the general meeting itself, owners can decide whether or not the want to allow people to be present by Skype, telephone or an other means. A little groundwork with the EC should ensure that goes through without too much trouble. As long as the ‘electronically present’ owners have provided a proxy, there should be no issues about voting etc.
However, one word of caution – I have heard anecdotally that for whatever reason – probably something to do with us being conditioned by years of TV watching, the Skype presence tends to dominate proceedings as we become entranced by the wonders of technology (even if there is a blithering idiot at the other end of the line).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.
To answer your last question first, various people will have different responses – some will think the EC are idiots for letting it get to this stage, others will think you are a pain in the bum for making a fuss. That’s life in strata.
I would be tempted to to write to every owner explaining that you have been left with little choice. The EC is in breach of a CTTT order and you have these options, neither of which you want to pursue. Ask them to contact the EC and apply some pressure for them to resolve the issue promptly.
But before that, I would attempt to sit down with the strata manager and/or EC chair or secretary and tell them exactly what your options are. First you will contact the other owners, then you will decide which option to pursue.
OR they could just save everyone a lot of grief and get the job done.
If they don’t respond, at least you can say you tried. By the way, if you apply for the statutory appointment of a strata manager, you have to find someone who is prepared to do the job – so effectively you get to decide who it will be.
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KP, I’m trying to offer practical advice based on considerable experience with the CTTT. You seem to be saying it is worth Jeff’s friends risking getting to adjudication only to find that should have gone for mediation first. I can only say in the strongest possible terms that I disagree.
I have seen too many cases fail at adjudications – which are done on paper without personal representations – because the correct paperwork wasn’t provided.
Jeff’s friend will not be there when the adjudicator looks through the pile of papers for evidence of mediation, as the form clearly demands. So there will be no one there to argue the subtleties of strata law and what the wording of the legislation means.
If mediation is not required for this, you would hope that someone for Fair Trading would say so in writing so that can be added to the documents provided.
Mediation is not necessarily geared towards compromise. What is more likely is that the law will be explained to both parties and then, hopefully, they will reach an agreement that is mutually acceptable and involves both financial compensation for those who have paid too much, an added impost on those who have paid too little and agreement on the correct procedures to be followed in the future.
This is not about my interpretation of the law being better or worse than yours – it’s about presenting a watertight case to the CTTT Adjudicator. If the legislation and the forms suggest mediation might be required, it would be cavalier of us to suggest that Jeff’s friend doesn’t bother with it.
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Once again, I find myself suggesting you tell the EC they can do this the easy way, or the hard way.
The easy way is that they approve a budget for the gardening works and allow you to do the work. You will supply them with receipts for any purchases and you will sign a document indemnifying them for any OHS issues.
The hard way is that you will apply to the CTTT for an order against them to force them to maintain the common property as is their legal duty under section 62 of the Act:
62 What are the duties of an owners corporation to maintain and repair property?
(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
Note section 3B which spells out that the appearance of common property is a significant issue in the obligation to maintain and repair and says that the owners Corp can’t decide not to do work if that means the appearance is negatively affected.
Realistically, I would offer lots of carrot before I reached for the stick. But I’d pull it out the moment I saw any signs that your very generous offer was heading towards the ‘too-hard” basket. A little gentle lobbying before you present your proposal – make the EC members feel important – will go a long way.
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Charlie
Check your by-laws and see what it says about doing work in the building or changing the appearance of your ‘lot’.. Generally, if the deck is yours then the pergoal will be too. But anything you do that affects common property or the amenity (e.g. outlook) of other owners has to ne approved by the Owners Corp or Executive Committee. For instance, drilling a hole in the hall to support the roof affects common property so you have to get their OK. In any case, letting people know what you are doing is just being a good neighbour – there’s no need to get territorial about stuff. Just let people know and then you’ll find out if there’s likely to be a problem.
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A motion can only be amended if the amendment doesn’t change the intent of the original motion. For instance, you could have a motion to create storage cages with chain link wire and amend that to create the cages with some other material – the essential motion is to create cages, so that would be OK But if someone proposed an amendment to use the space for bicycle racks instead of storage cages, that amendment would fail as it is changing the essence of the original motion.
And to answer the question about whe do you put motions up for the AGM, you are legally allowed to do so until the agenda is issued. I wanted to put motions up for our AGM and when I called to find out what the deadline was, I was told it had passed as they were now compiling the agenda. I said fine, that means the agenda hasn’t been issued so you have to accept my motions.
Wish I hadn’t though – it wasn’t so much an AGM as the Battle of Little Big Horn with me playing General Custer.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.