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The only way the Owners Corp can be compelled take over responsibility for air-con when it has been installed on common property is either
a) it was installed with permission but there was no agreement made that the owners would have responsibility for care and maintenance
b) it was installed without permission and then the property was subsequently sold to another owner.
Your by-law that everyone is responsible for their own A/C covers that.
If an owner wants to change common property, you can give them permission on condition that the changes they make are their responsibility, as is any deterioration of the integrity of the roof or walls as a result of the changes. If they refuse, then you refuse to give them permission.
The question of the warranty can only be answered by the installer. But if the owner wants a vent and you give them permission, they have to agree, as part of the requisite special resolution, to maintain and repait the seals around the vent and to make good any damage if they fail.
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You need to get in touch with a strata manager who is prepared to take over your scheme. Don’t even consider a strata manager who is not part of the Strata Community Australia but bear in mind that many strata management companies are not keen to deal with small schemes – same amount of hassle for less money.
You will need them to help you get your papers back from the previous manager whom you should dismiss on the grounds that a) their licence has expired and b) they have put your scheme in a position where it is in contravention of the Strata Act by not having insurance.
Finally, you need to report your strata manager to Fair Trading so that they can be dealt with at the highest level.
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I’ve asked around various strata folk and firstly they all concur with ScotlandX who said Notices To Comply only apply to by-laws.
However …
The Owners Corp, or even an owner, can lodge an application under s138 for owner to comply with section 3 clause 14 and not speak unless authorised. The CTTT should uphold that provision, particularly if there is clear evidence that the owner is disruptive and refuses to accept the EC’s decision not to allow them to speak.
Once the order is made, if it’s breached again the Owners Corp or original plaintiff can apply for a penalty of up to $550.
A Notice to Comply is only in relation to by-laws, as Scotty said, but there’s nothing to stop an Owners Corp creating a by-law to mirror the Act – i.e, “All owners agree to abide by section 3, clause 14 etc etc”. It’s a bit cumbersome and time consuming if you don’t have an AGM imminent.
Finally, to avoid confrontation completely, you could have a ‘paper’ EC meeting but you still have to produce a full agenda, all votes have to be in writing and there have to be proper minutes.
A paper meeting apparently does not require physical attendance, (s3 cl10) and it allows valid decisions if majority of EC members vote in writing. So it can be used to bypass disruptive complainers, especially if EC members have an informal chat first, to decide what they are going to decided, then conduct their actual meeting on paper – with as detailed minutes as possible – so that other owners can see what’s been discussed and decided.
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And tell them who sent you …
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I have no hesitation in recommending
Richard Haydon | Acoustic Dynamics – Acoustical & Vibration Consultants +61 2 9908 1270 | 02 9908 1271 | email rh@acousticdynamics.com.au
Don’t forget to tell him where you heard about him.
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@scotlandx said:
In the context of meetings, it is up to the Chair to run the meeting – if someone is being disruptive then the Chair should issue a warning, and if the person ignores it they should be removed. I know in real life this is not always workable.
And there’s the problem – hiring security guards to forcibly eject owners from a meeting that they are entitled to attend is a whole other legal minefield. You can’t gag them (more’s the pity). Also they may be in the right but have an autocratic chair who only allows one voice to be heard … theirs.
I know one building that used to ask a tenant who was a personal trainer and ex-special forces to attend because one owner – a gym junkie on permanent ‘roid rage – would only respond to him when he was told to calm down. Maybe there’s a market for strata ‘minders’.
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It’s all about attitude, isn’t it? The original poster realised she had upset her neighbour and tried to make amends. The neighbour unfortunately decided this was an opportunity to exact revenge and make a few bucks.
That’s very different from the mad renovator who doesn’t give a stuff how badly the noise and fumes from their efforts affect their neighbours
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I don’t disagree – but I think if you could prove someone was persistently disrupting meetings and therefore interfering with the effective running of the building, you could say there’s the harm right there.
But let’s just assume you’re right and I’m wrong, who do you call when an owners isn’t complying with the Act (rather than the by-laws)?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.
It all depends on what it says on the policy and/or the inclination of the insurer. Some insurers will pay for things that aren’t specifically covered by the policy as an act of goodwill. There is no law against it.
But, for instance if an Owners Corp was taken to the CTTT by an owner and the insurance covered legal fees, then that would be perfectly legitimate.
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@scotlandx said:
In relation to Jimmy’s suggestion to issue a notice to comply with the legislation, I don’t believe an owners corporation can do that, as it only applies to by-laws.This actually occurred to me but then I couldn’t think of any other way that you could take a complaint against owner for being in breach of the strata Act.
On page 2 of the application form for a CTTT adjudication, it invites you to fill in the relevant section of the Act that has been breached.
On page 3, explaining the grounds under which you can apply for a Section 138 order, it says:
Note: This is the general power of an Adjudicator to settle a
dispute or complaint about the operation, administration or
management of a strata scheme, or functions conferred or
imposed. Examples of general disputes or complaints include the
following:
Management of administrative and sinking funds
Holding meetings in accordance with the Act
Interference with support of shelter or essential services
etc etc …Am I drawing too long a bow? But it does seem that the CTTT adjudicator will deal with breaches of the Act rather than just by-laws.
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You have answered your own question in another post (you cut and pasted the web page address and used it as a title, so the post is no longer accessible) and that is to apply for the statutory appointment of a strata manager on the grounds that the building is not being managed for the benefit of the majority of owners, the EC is seriously dysfunctional and the building manager can’t be trusted.
To get the CTTT to agree to statutory appointment, you have to have a strata manager who will agree to take over the role. In your other question you asked if you could provide a shortlist of possible managers. The simple answer is, if they have all agreed to run the place if appointed, I can’t see why not. However, it would be much easier to get one good strata manger with an exemplary reputation who is prepared to help you before and after the CTTT application.
In cases like yours, some buildings have had their existing strata manager appointed, when they can show that they were trying to do the right thing but were prevented from doing their job by a corrupt caretaker/building manager and a compliant EC.
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The points refer to the basic unit of fines that can be issued by the CTTT. At the moment one point is the equivalent of $110. It is expressed this way so that they don’t have to rewrite the Act every time they want to increase fines across the board. So right now, say, five penalty points equals $550.
I’m pretty sure the caretaker would be liable for any fines but I would check with a strata lawyer before you have any further with this. Make sure you have copies of any correspondence regarding the letting of the apartment.
It’s time your building had a good hard look at this person who is probably also breaching council by-laws. I hope our friends from ARAMA (the Australian Residential Managers body) are reading this because they would tell you that caretakers never do this kind of thing when we know some are rorting owners left right and centre.
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This may seem a bit extreme but I think verbal abuse – spoken or in writing – is considered an assault when you apply for an Apprehended Violence Order. However I believe that this would only be a legitimate avenue if the individual members of the EC applied for the AVO.
It may be worth asking a lawyer if your neighbours can be ordered to cease and desist their harrassment campaigns and that they be ordered not to speak at Executive Committee meetings unless they are invited to do so by the Executive Committee (as prescribed in the strata Act, see below).
If you get a court order against them and they continue their behaviour, they are breaking the law (contempt of court) and the police can be involved.
You might also be able to get an order forbidding them from using letters and other material owned by the Owners Corp – that’s all the owners collectively – for their own personal use.
I’m instinctively against censoring or silencing alternative voices, regardless of how annoying they are, but it’s hard to prove where freedom of speech becomes a licence to abuse. In cases where this is clearly mischievous and causing serious distress while interrupting the smooth running of the building then it may be a matter of compiling the evidence and gathering statutory declarations to show that this behaviour has gone beyond acceptable ‘energetic’ discussion of the issues of the day.
When someone is sending owners material which shows they have been discussed in uncomplimentary terms, all you can do is accept that, yes, as part of the running of the building, people sometimes disagree and there are two sides to every story. If what has been said, or more significantly, written in “private” is defamatory, then you have a whole other issue to deal with because there is no such thing as private correspondence in an EC.
To paraphrase a lawyer friend, the only time you can keep EC correspondence secret from owners is when there is an issue of “commercial in confidence around contracts or when the EC is involved in a legal battle with an owner and it would be to the majority of owners’ disadvantage if all correspondence was available to the other party. But, as an Owners Corporation Network seminar was told recently even then you are on shaky ground, legally.
By the way, if the disgruntled owners are disrupting EC meetings, you could issue them with a Notice To Comply* with Schedule 3, Part 2, Paragraph 14 of the strata Act which says:
14 Owners’ attendance at executive committee meetings
An owner … is entitled to attend a meeting of the executive committee but may not address the meeting unless authorised by resolution of the executive committee.
If they turn up and disrupt a meeting after they have received an NTC, you can run them along to the CTTT and ask it to impose a fine of up to $550.
*I’ve since been told that, since you can only issue Notices to Comply with by-laws (not the law) you have to first pass a by-law agreeing that owners will conduct themselves at meetings subject to the appropriate section of the strata Act.
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We used Precision Flooring who have become the default installers for our building for the simple reason that they do get it and they do a very good job. They are expensive I would use them again so I can’t say better than that.
While we’re on the subject, my building has a completely unnecessary and restrictive by-law which stupidly prescribes exactly the kind of insulation you need to have which pretty much precludes any technical advances that may happen in the future. It also demands acoustic testing which is basically just a free pass to thousands of dollars for the firms that do it.
This is what happens when know-all business heads and retired lawyers who can’t even be bothered to learn about strata law take control of your EC. All you need is a by-law that says you can’t put down flooring that significantly reduces the noise insulation from your flat to any others and if you do that, then you have to either re-lay the floor or recarpet.
An intelligent EC would then provide suggestions of the best way to achieve that, which could be amended as new techniques come online. Sadly, that would be way too flexible for the control freaks on my EC.
Here endeth the spleen venting.
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Yes, the smell of varnish or paint can be temporarily unpleasant and the Original Poster recognised that by presenting a gift by way of apology. But I don’t know of any substance for domestic use that would leave a lingering smell for so long. The demands by the neighbour are ridiculous and opportunist. You say flippant, I say lighthearted and this website is never going to slam anyone for trying to inject a bit of humour into what can be a dreary old world.
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