[Jimmy-T]

@kiwipaul said:
According to my reading of the law you can skip mediation and go straight to Adjudication IF the Strata Roll (or other legal document) shows unit entiltlements are different from what she has been paying, because a mediator has no jurisdiction in this case.

From NSW Strata living

What disputes are excluded?
• allocation of unit entitlements

Yes but … no, but …

This isn’t about the allocation of UEs it’s about the amount of levies charged.   We are working on the basis that there was a set of UEs established when the strata plan was registered but that was ignored by subsequent Owners Corps.

On the CTTT form, under Section 149, it says 

To alter amount of contributions or alter manner of payment of contributions

• Describe why the levy should be a different amount and what the amount should be
• Provide the date the levy was decided and the last day for payment
• Include the estimates and minutes of meetings where the levy was decided
• Describe how the levy should be paid (you should provide sufficient detail to enable an understanding of your budgets and levies)
• Attach evidence of attempted mediation

The last line is also in bold on the form so I guess that means they mean it.

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[Jimmy-T]

In September this year, we will be asked to choose our government.  Roughly half of the people of the country (give or take 5 percent) will be mostly or very happy with the outcome.  The other half (give or take 5 percent) will be mostly or very unhappy with the outcome.

This is democracy, which Winston Churchill once described as the worst system of government in the world … apart from all the others.

Unless you have noted something illegal in this decision making process, you might just have to suck it up. If the owners can’t be bothered to make an informed decision on matters that are going to cost them money, there’s not a lot you can do.

However, I wonder if your local council has a policy on the colours of buildings?

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[Jimmy-T]

@Jeff said:
Thank you Jimmy. This information would be very helpful to my friend.

One other thing, since your friend has to pay for mediation to start the process, it may be smart for her to demand that the Owners Corp produces the Strata Roll to show the unit entitlements – saving her the expense of getting a copy.

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[Jimmy-T]

This owner need to take an action at the CTTT under section 149 (below) to get an order to refund the excess payments she has made, using the Unit Entitlements that were registered with the strata plan as her guide, and to make future levies compliant with the Act.

What should happen is that the Owners Corp should refund money to those who have overpaid and charge an excess to those who have underpaid.  The CTTT may place a time limit on how far back you can go with your claim.

The first step is to apply for mediation at Fair Trading (this form) and if that fails, make an application for an order at the CTTT using this form.

Realistically, the other owners don’t have a leg to stand on if there is evidence that they have been charging levies calculated by an other means than the unit entitlements.

This owner will have to provide evidence of what the unit entitlements are (or should be) and what they have paid in levies over the years. 

 

This is what section 149 of the Act says:

149Order for variation of contributions levied or manner of payment of contributions

(1)  An Adjudicator may make either or both of the following orders if the Adjudicator considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:

(a)  an order for payment of contributions of a different amount,

(b)  an order for payment of contributions in a different manner.

(2)  If an Adjudicator considers that the consent of an owner referred to in section 77 has been unreasonably refused, the Adjudicator may make an order for payment of a different amount of one or more contributions levied or proposed to be levied by the owners corporation.

(3)  If a contribution which is the subject of an order under this section has been wholly or partly paid:

(a)  an order to pay more has effect as if the owners corporation had decided to levy a contribution equal to the difference, and

(b)  an order to pay less imposes a duty on the owners corporation to refund the difference.

(4)  An application for an order under this section may be made only by the lessor of a leasehold strata scheme, an owners corporation, an owner or by a mortgagee in possession (whether in person or not).

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[Jimmy-T]

My first reaction is that the balcony and sliding doors are both probably common property so you can get on there and close them, if you feel it’s necessary.

However, if you are concerned about the safety of someone climbing a mladder, then you might be better to hire a tradesman who will have their own insurance to do it.

The alternative is to have a quick rinag around the EC, declare this an emergency and hire a locksmith to get you access to the flat so it can be done safely.

bearing in minsd tha t the owners Corp has a legal obligation to maintain anmd repair common property, this is what the Act says about entering owners’ units:

Part 2 Maintenance, repairs, alteration and use of common property and fire safety inspections

65 Can an owners corporation enter property in order to carry out work?

(1)  An owners corporation may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of carrying out the following work:

(a)  work required to be carried out by the owners corporation in accordance with this Act,

 

(2)  An owners corporation may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.

(3)  In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.

But don’t forget that you will be liable if anything gets damaged (like the lock)

(6)  An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.

So the answer is, hire an insured tradie to climb on to the balcony ar get a locksmith to let you in – and be prepared for howls of outrage from the tenant – especially in the latter case. But if you take the prcaustion of making this an official EC decision, at least you will be covered by your EC insurance iof the tenant decides to take action (although on what grounds that might be I have no idea). 

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[Jimmy-T]

@Paul2000 said:
Sound like a fantastic article Jimmy, well written as usual, even poetic(?)…..

To assist my Ludditic tendencies, where do I find it???

Some say poetic, some say pathetic … It’s on the Home page of the website HERE.

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[Jimmy-T]

@scotlandx said:
No. You can only recover costs associated with recovering the debt, and interest on a strata loan has nothing to do with debt recovery.

Yes, I suspected that might be the case – wishful thinking on my part.

Something that might work, though, would be a letter to the non-payers explaining how much they were likely to pay if they didn’t fork out pronto.  Get some estimates from strata  levies debt recovery agencies then put together a note that says something like:

Failure to pay your levies by this date will lead to the imposition of a 10 percent penalty interest charge (as dictated by the Strata Schemes Management Act) plus, if necessary, all costs associated with the recovery of the debt including fees and court costs estimated at but not limited to $XX.  It is therefore in you best interests to pay this debt as soon as possible before debt recovery action is commenced.

That should get the backsliders’ attention.

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[Jimmy-T]

I’d just like to chuck another question into the mix.  If the Owners Corp has to get some kind of bridging loan to cover the shortfall in levies, can the interest on the loan be calculated as a legitimate cost of debt recovery which the recalcitrant owners would also have to pay?

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[Jimmy-T]

There is no way you should be paying a special levy to make up for those who won’t pay.  Instead you should be looking fro a strata debt collection service who will get all the money for you at NO COST to the owners corp.  Google ‘strata debt collection’ to get a list of companies.

If you need to raise the money to cover for a shortfall, contact Lannocks, who are sponsors of this site, to organise bridging finance.

And if your new Strata Manager can’t sort all this out for you, they’re not much use.  It is illegal for the old SM to hang on to your documents and finances.  If your SM won’t do it, call Fair Trading (13 32 20) and get them on the case.

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[Jimmy-T]

The good thing about paying someone to do it is that everybody contributes through their levies, which means tenants are also indirectly paying for it. The issue of freestyle dumpers is another matter entirely.

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[Jimmy-T]

Not disputing any of this.  It does seem strange though that the law says a by-law “must” contain certain elements and then, elsewhere, spells out what to do if it doesn’t. 

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[Jimmy-T]

OK, I think what we are talking about here is a by-law that allows the exclusive use of the airspace above common property for the construction of the pergola as well as anything that is attached to common property.  Whether it’s ‘exclusive use” or  ‘Special Resolution’ doesn’t really matter – it’s a by-law.

The terms of the by-law should contain the dimensions of the pergola or at least a reference to a plan.  The by-law should also contain an agreement about who is going to look after this construction.

This is what the Act says:

Division 4 Special provisions for by-laws conferring certain rights or privileges

54   By-law must provide for maintenance of property

(1)  A by-law to which this Division applies must:

(a)  provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or

(b)  impose on the owner or owners concerned the responsibility for that maintenance and upkeep.

And …

(3)  To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.

And my reading of that is that the by-law isn’t valid if it doesn’t say who is responsible for maintenance.

Also, if the Pergola hasn’t been built in accordance with the by-law, the aggrieved owner can apply to the CTTT for an order compelling the pergola owner to comply with the terms of the by-law.

Now, as you know, I’m not a lawyer so definitive opinions are welcome

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[Jimmy-T]

@kiwipaul said:
 

3) I searched the Strata Schemes Management Act 1996 No 138 and can find no reference to Notice to Comply, so where does the Strata get the authority to issue a Notice to Comply.

This is what it says in the Act – the ‘notice’ referred to is a Notice To Comply

45   How can an owners corporation enforce the by-laws?

(1)  An owners corporation may serve a notice, in a form approved by the Director-General, on the owner or occupier of a lot requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.

(2)  A notice cannot be issued under this section unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation or the executive committee of the owners corporation.

(3)  Subsection (2) does not apply to the issue of a notice under this section by a strata managing agent if that function has been delegated to the strata managing agent in accordance with this Act.

Note. The Tribunal may impose a pecuniary penalty on a person for failing to comply with a notice under this section (see section 203).

 

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[Jimmy-T]

I’m actually in the middle of writing an editorial on this very issue so bear with me. But to answer 1, no you don’t need to go to mediation to pursue a Notice To Comply.
2. There is no conciliation or mediation with an NTC – the Notice is issued, If it’s ignored you apply directly for the imposition of a penalty.

 

There is remarkably little about Notices To comply in CTTT literature but if you download THIS pdf and scroll down to section 203 you will notice that mediation is not a prerequisite.  You can find out a little more about NTCs on the fair Trading website HERE.

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[Jimmy-T]

@Felix said:
However we feel that we would like to by-pass the strata manager and deal with a strata law firm who perhaps puts an emphasis on by-laws.

Any suggestions will be appreciated.

We have very competent strata lawyers Makinson & d’Apice (as represented by Suzie Broome and Beverley Hoskinson-Green) sponsoring this site and you can find out more about them HERE.  Mention Flat Chat and you will be recognised as being enlightened and educated beyond your peers.

If you want to shop around, we have other suggestions HERE.

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