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Have a look at this collection of rulings HERE but if you are looking for something absolute and definitive, don’t hold your breath … this is strata … in NSW..
Your selfish upstairs neighbour can wave all the acoustic reports they like but there is only one factor that is truly significant … is the noise transmitted to your apartment excessive and disturbing?
That can be harder to prove than whether or not the upstairs neighbour installed the floor to whatever standard or not, but if you can prove it – and it can be done – it gives them nowhere to go but to re-install the flooring properly or re-lay carpet.
You might get a result at the CTTT – you may not … it’s all a bit of a lucky dip there.
Personally, I’d like to see an Owners Corp get together and drag one of these greedy, ignorant nincompoops who think they have the right to enhance the value of their apartment to the detriment of their neighbours’ to the Supreme Court where damages can be claimed.
I’d also like to see flooring sales people having to re-lay the flooring or the carpet at their own expense if they can’t prove that they have warned an apartment owner adequately about the dangers of improperly insulated timber floor. Maybe flooring installers should be required to sign a copy of a building’s by-laws to prove that they and their customers have both read them.
As it is, some flooring sales people are worse than used car salesmen – and I’m talking about the kind of used cars that run on snake oil. When I installed timber flooring (and it cost three times as much as the cheapest option to make it fully compliant) I had flooring salesmen tell me not to worry about the “boring old farts” on ECs as there was nothing they could do anyway.
(sigh)
As far as timings go this is what the CTTT website says: “You can expect the matter to be finalised within 3 months after lodging your application with the CTTT.”
What does ‘finalised’ mean? Is it when the adjudicator rules or when your appeal is heard? And there will be an appeal – rest assured. Adjudication purely on paper is such an unsatisfactory process that it’s likely to be scrapped in the near future. But for now all it means is that one party or the other – whoever loses – will feel that their side of the story hasn’t been heard properly so they will appeal to a hearing anyway.
So while you are waiting for the adjudication to drop from the heavens, gather as much evidence of noise as you can – including recordings, stat decs from friends and neighbours, and diary entries – to present at the hearing that you will inevitably have to attend.
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What does it say in your by-laws. Some ban pet visitors completely (while allowing residents’ pets) some merely say that owners are responsible for the behaviour of visitors’ pets. Check your by-laws (not standard by-laws or some other building’s) – they are the only ones that count.
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Sorry folks – I misread the original posting and thought the dog door had been installed by a previous owner (too much festive spirit, I fear).
If the current owner installed the dog door then they have to pay for the repair of the window, in my view, as it was damaged by them in the first place and arguably weakened by the installation, not to mention what happened during the burglary. No dog door, no burglary, no breakage would be my logic and this would come under damage to common property.
My view is similar to but probably a little more aggressive that Whale’s. Charge them for the repair and then tell them if they want a dog door it will require a by-law that transfers ongoing maintenance of the door to the current and subsequent owners. No by-law, no dog door – simple as that. If they baulk at that, comprise if you want to on how much they pay but make sure you establish that they were in the wrong to fit the dog door without permission.
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Your quorum is three (2.5 actually but try working that out without bloodshed).
Your last AGM presumably set the membership at five so your quorum is half that.
You need three memebrs to be at the meeting in person (proxies won’t count unless they’re approved by the meeting … which has to be quorate) and then you elect a new member who joins until the next AGM. The new member is elected by a simple majority of the EC members.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.
@Petard said:
The ‘shaft’ for the dumbwaiter is not shown on the strata plan. Our apartment, #2 does not have any access doors for the dumbwaiter; the access doors are on the basement level of apartment 1, one floor below ours, and in apartment 1, on the level above our apartment. I can only guess that the dumbwaiter, its equipment and shaft are the property of apartment 1. I cannot believe that the Owners’ Corporation would have any responsibility for it. I think it’s safe to assume that apartment 1 is solely responsible for its use, maintenance and of course the noise it makes.If the proposal for removing it and replacing it goes ahead, I wonder if I’m able to impose some sort of conditions for its construction and assembly (slides versus rollers), sound insulation, its use re noise and hours of operation, as the shaft runs directly through one of our rooms!
This question has remained unanswered for a while – apologies for that – but I would be very surprised if the structure around the lift shaft wasn’t common property. And yes, of course, any changes that affect common property and the “peaceful enjoyment” of other lots, require Owners Corp permission.
The people on the top floor of my buiding are the only ones who have access to their lift lobby or the top four metres of the lift shaft – that doesn’t make that bit their property. No one else has access to my ceiling but it is still common property.
When you sa “I can only guess …” that is exactly what you are doing. There is a huge difference between the lift shaft (which will be part of the structure of the building) and the mechanics of the lift which quite clearly aren’t.
However, there is little point in to-ing and fro-ing with questions based on what your neighbour says and what you think – quite clearly neither of you are experts on strata law and what you need more than anything is a definitive answer from an authoritative source plus an enforceable order about what your neighbour can and can’t do and what kind of conditions you can impose on their plans.
I have provided a link to the appropriate form in my posting below. You want an order from the CTTT that the lift shaft is common property (even if the mechanicals inside aren’t) and that your neighbour can’t make changes to it without your permission.
Mediation is a compulsory step before you can get a CTTT order. I believe you have every chance of success if you take this step now and there is really no point in offering any more advice on this issue if you aren’t prepared to do that.
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This isn’t at all challenging. Unless there is a by-laws providing exclusive use and conditions for ownership attached, this is all common property. This discussion has been dragging on for months if not years, now. Your neighbour is out of line and you need to stop this nonsense right now.
Apply to Fair Trading for a mediation (Form HERE) under section 138 on the basis that you want a CTTT order telling your neighbour that they can’t make changes to the lift shaft or any other part of common property without Owners Corporation permission and you want an order clarifying that the lift shaft is, indeed, common property.
Gather together the original strata plan, which will define common property, as a well as any other documentation and bring this matter to a head.
The fact that the neighbour is the only person using the lift shaft makes no difference to its status as common property. Just as an example, external stairs to a property’s front door are only used by its residents but they will be common property, at least in part because of the implications their maintenance and repair have on the integrity of the rest for the building.
Readers who are not aware of this long-running saga can find previous postings below.
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@excathedra said:
Sounds like a sad waste of a good red! You are more deserving of it now.More seriously, have you been able to compare notes with your other neighbours? There may be quite a trail of vexatious complaints from this person.
I agree. Demanding money when there is no legal basis for payment, and based on false information and empty threats, is bordering on extortion and fraud.
All these ‘bush lawyers’ in strata who think they are entitled to be compensated for every minor inconvenience need a reality check. A brusque note telling them to either put or shut up or you will refer this to the police might have the desire effect. Or, just for a laugh, you could threaten to sue for accepting a bottle of red under false pretenses.
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Time to have an “audit’ of cars. The EC should send round a circular telling people that you are trying to establish which cars belong in the building and which are non-resident or abandoned cars. You want them to give you their registration details and unit numbers to make sure they are not identified wrongly as abandoned or “rogue” parkers who are non- residents.
Explain in the note that following the audit, cars that are illegally parked in visitors parking, on common property or another owner’s car space and are not on the register will be removed from the building so they can be dealt with by being declared abandoned and towed away by the local council.
In the case of cars that are on the register but wrongly parked, information will be provided about where and when they can park legally. You could also go a bit further and ask owners who have car spaces that are empty and wish to rent them (to residents only) should let the EC know and the information will be passed to people who need extra parking.
In the meantime, you could pass a by-law requiring all residents – owners and tenants – to register the car registration numbers and their unit numbers with the strata manager and EC within, say, 14 days of moving into the building or acquiring a new car or, indeed, when a parking audit is conducted.
We did a vehicle audit in a building because we suspected residents were renting unused car spaces that they didn’t own to their friends and people who worked nearby. We left the audit notices on every car and in every letterbox. Over one weekend, about 20 cars disappeared from the car park, never to be seen again
FYI: Removing illegally parked cars is not strictly legal in itself but it’s very effective, if THIS STORY is anything to go by.
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@Whale said:
I know that Jimmy T keeps stating that a NTC is a warning and/or advisory note, and he’s absolutely correct, but as kiwipaul observed (post #4) and I’ve experienced (yes another one) the CTTT does give an O/C brownie-points if it uses a prior means to advise residents and others that they’re in breach.I don’t disagree, but I reckon you are just as likely to get one of these nitpicking paper-shufflers at the CTTT who only takes into account information that’s provided on the correct forms as stipulated by the Act.
Q: How many strata tribunals are heard in NSW, on average each week. (answer at bottom of post)
Over the years I’ve had so many versions of the “how many warnings do we have to issue before we can fine people” question I occasionally like to remind everyone what an NTC is not a fine, not a summons and definitely not the be-all and end-all.
I also think that too often in strata we’re looking for a magic bullet, one-size-fits-all solution when each strata scheme needs to devise its own protocols. As Whale discovered, the risks of creating a parking vigilante by allowing people to post semi-official notes are great. However, the basic idea of these notes is sound because it works in that scheme.
I have lived in strata schemes where the “polite reminder” was regarded as a free pass: “parked illegally again … got away with it … result!”
I think each scheme should devise a system that works, then stick to it. If a polit warning does the trick, it’s a better solution for community harmony than the heavier-handed Notice To Comply.
Definitely don’t issue NTCs if you’re not going to follow through, but that applies to polite warnings too. Don’t have your carpark looking like an explosion at a printworks and do tell owners when things are getting out of hand and you are about to impose order where chaos has reigned.
A: 3 – it’s a seriously under-utilised option, according to our Fair Trading Minister
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Devolve all decision making to your strata manager, pay them handsomely for all the crap they will have to put up with and whenever anyone even looks like complaining just say “well, there is a vacancy on the EC …”
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LadyJ said
The problem parkers are being told to ignore any letters on their windscreens. This escalates the issue because problem parkers are now ignoring every letter they get, for all types of issues (serial offenders). Can residents have action taken against them for re-issuing the official letter and/or official by-laws?
In a word, NO. But who is telling the problem parkers to ignore the notices? Who says they are ‘illegal’?
I fear your strata scheme is being sidetracked by bogus claims of what is legal and what isn’t because your processes aren’t functioning properly.
Firstly, you need to get your strata roll up to date, including a current list of who your tenants are. I confidently predict your buildings’ strata manager and/or rental agents will claim there are privacy issues at which point you will refer them to Section 119 of the strata Act that requires them to provide the information (see below) or face a fine of up to $550.
Then you have to tell your notice-posting owners to give it a rest while you make things more official. At the same time, you need to tighten up the warnings and Notice To Comply system so that NTCs are sent to the owner or tenant with copies posted under the car windscreen wiper.
Then, and this is the most important thing, you need to follow through. In fact, I wouldn’t bother with warnings. A Notice To Comply IS a warning. It is not a fine. It tells owners that if they don’t comply, action will be taken to have fines imposed.
So tighten everything up. Tell your amateur traffic cops to back off or, at the very least, devise a standard note that can be issued saying something like: “This vehicle is parked illegally. Your details have been passed to the Executive Committee and strata manager with a view to a Notice To Comply being issued. A Notice Co Comply can lead to fines of up to $550 being imposed. Please do not park here again.” And tell them they have to pass the details of when the note was posted to the SM or EC so proper procedures can be followed.
Sounds to me that you need to have a meeting to discuss parking strategies – it can be a community meeting, rather than an official EC or General meeting – just as long as you can agree on a strategy
This is what the Act says about informing the Owners Corp when lots are leased.
119 Notice to be given to owners corporation of leases or subleases
(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation within 14 days after the commencement of the lease.
Maximum penalty: 5 penalty units.
(2) If a lot is subleased, the sublessor must give notice of the sublease, in accordance with this section, to the owners corporation within 14 days after the commencement of the sublease.
Maximum penalty: 5 penalty units.
(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation within 14 days after the execution of the assignment.
Maximum penalty: 5 penalty units.
(4) The notice must specify:
(a) the name of the lessee, sublessee or assignee, and
(b) the date of commencement or assignment of the lease or sublease, as the case requires, and
(c) the name of any agent acting for the owner in respect of the lease or sublease.
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@kiwipaul said:
Because he is maintaining it he is saying the EC money and so you have to be careful otherwise he might stop doing it and leave it to the EC to maintain.That would be my primary consideration. I would be tempted to simply send a letter that politely established that the area is common property, congratulated him on the work that he’s done and asked him to let the EC know if he plans any further landscaping and what form that might take.
The main reason for doing this would be to establish ownership without getting into an unnecessary fight. This owner is enhancing the look of the entire building which boosts the values of everyone’s properties. But it’s worth establishing ownership to avoid any future annexing of the common property by him or subsequent owners.
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The Act doesn’t need to say the EC must meet because no meeting means it’s not an EC decision – if there’s not a meeting, it’s not the EC. The Chair has no executive powers.
There are variations of that, for instance the Owners Corp can (and often does) devolve certain decisions to the Strata Manager. Or it can allow someone like a building manager to act on its behalf, or even individual owners, especiallywith regard to a certain project.
But in the vast majority of situations where there is no building manager and the strata manager doesn’t handle day-to-day decisions, the Executive Committee has to do so – but how does it make a decision without some kind of a meeting?
One answer is that (as happens in my building) the Chair starts acting like a CEO or General Manager, making arbitrary decisions that he or she knows will be supported by the Executive Committee.
If an EC isn’t prepared to reel their office-bearers in, there is little that can be done preemptively to stop them. But if they make decisions that haven’t been approved by an EC meeting, then they can be in trouble if the Owners Corp turns round and says, “Hey, we didn’t give you prior approval to do this and you haven’t held an EC meeting so you are not acting as representatives of the Owners Corporation.”
Another grey area is where ECs do a ring-around or hold a meeting by email which strictly speaking isn’t a meeting but you can be sure they will ratify the decision at at later, properly notified meeting. There’s nothing wrong with this and it does help with the smooth running of a strata scheme if decisions can be made when they need to be made.
In any case, an ordinary owner isn’t going to be able to change the decisions of the EC whether or not it’s properly notified. You don’t even have the right to speak at an EC meeting unless a majority of EC members want to hear what you have to say.
However if, say, a dominant member of the EC starts making arbitrary decisions that the EC won’t approve retrospectively – signing contracts with tradespeople that turn out to be over-priced or incompetent, for instance – then they could be in serious trouble because they have no authority to do that. Without proper EC authority, they are personally liable for contracts that they sign.
At the risk of repeating myself, the Act devolves Owners Corporation decision-making to the Executive Committee – not to the Chair, the secretary or anyone else. That implies a meeting, even if it is by email or phone.
One note of caution: Don’t expect to get a CTTT order against your current EC members unless you can show that an owner or owners have suffered some sort of harm as a result of correct procedures not being observed.
The CTTT is specifically given powers to reject applications for orders where the only fault is that the protocols weren’t followed and many adjudicators will work on the basis of ‘no harm, no foul’.
This is what the Act says:
185 Dismissal of application on certain grounds
If the ground for an application for an order under this Part is:
(a) the absence of a quorum at a meeting, or
(b) a defect, irregularity or deficiency of notice or time,
the Tribunal may, by order, dismiss the application if the Tribunal believes that no substantial injustice has resulted.
So don’t expect the CTTT to fight your battles on matters of procedure or principle. You have to show that there has been “injustice” and it might be easier to just run a campaign at a General Meeting to clear these people out or, at the very least, get the Owners at a General Meeting, to agree not to validate decisions made without proper procedures having been observed.
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@scotlandx said:
Happy Christmas to everyone and personally I hope 2013 will be better because 2012 has been awful for us! Some strata legislation and a sensible Tribunal that makes sense would be lovely…ever the optimist.
Maybe we do need a Sanity Clause, after all. Merry Christmas and God help (sorry) bless us all (said Tiny Jim).
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@scotlandx said:
… it doesn’t make sense to have to call a general meeting to appoint someone to a casual vacancy, which is what the legislation suggests.It may suggest that but standard practise is for the EC acting on behalf of the Owners Corp to elect the new member. This is what the Act says:
(2) When a vacancy occurs in the office of a member of an executive committee … the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.
The key missing phrase is “at a general meeting”. And the word that interests me is ‘must” – there is very little compulsion in the Act so we should take it seriously when the legislation stamps its little foot.
And you are right, ScotlandX, having two vacancies on an EC of only four seats means you are sailing too close to the wind of quorum every time a meeting is called (although these bods don’t seem to bother with such niceties as calling meetings).
Personally, I would write into the Act that if there are not enough nominations to fill the number of seats determined at an AGM, the meeting should continue until such times as enough members are found to fill the seats or the number of seats is reduced.
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