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If the bathroom has been designated common property in the plan, the owner may have a claim. However. under the “Who’s responsible … ” memorandum, even then it would only be for the immediate damage or defects only.
More likely, however, you would say that since the bathroom walls are internal and so is the damage, there is no responsibility to the Owners Corp. The Memorandum seems to say that the Owners Corp is not responsible for damage caused by a failure of Common Property – not logical and probably not legal but there it is in black and white and would certinly be used as a guide by an adjudicator at the CTTT.
Add to the fact that the owner has gone ahead and fixed it, so there’s no way of telling who was responsible in the first place (they could have damaged the tiles and seal doing other work).
It really is up to the Owners Corp how far they want to go with this and that comes down to community relations. There are plenty of grounds for limiting or even refusing the payment but if you want to keep everyone sweet, compromise is the key.
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Legally, there is no such thing as a “Breach of By-law” notice (at least not in NSW) although there may be an internal document that your Owners Corp uses as its own first warning to get your attention.
The one you have to take seriously is a Notice To Comply – this is issued by the Executive Committee or the strata manager and is what it says on the tin – it tells you you have breached a by-law (and has to state what the by-law is and how it has been breached) and tells you that you have to comply with the by-law in the future. If you don’t there is no second warning – you can be taken to the CTTT where a fine of up to $550 can be imposed).
However, all you have to do is make sure your son doesn’t misbehave and break the same by-laws again and all will be well.
I believe there is an obscure law dating back to convict times that allows you to kick your boy’s backside (without fear of assault charges) while telling him to choose better friends and think about his neighbours but I can’t quite lay my hands on it right now.
But seriously, if the Notice To Comply cites a by-law relating to, say noise, any future breach of that by-law could lead to action at the CTTT. That means the next time you throw a party or are watching your Die Hard DVDs at full volume, you could end up paying for your lad’s indiscretions.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.
If all the owners have smoke alarms and the Owners Corp pays for their installation and maintanance, then it’s the same as having them all paid for individually (notwithstanding differences in unit entitlements). This argument is another example of the disconnect between the concepts of ‘us’ owners and “them” the ‘strata’ or owners corp (which are the same thing).
However, somewhere in the dim recesses of my mind is the concept that if the hard-wired smoke alarms connect to a common or chared control panel, the are common property.
Next, let’s deal with the idea that smoke alarms are a safety measure for everyone and not just an inconvenient luxury for all but those who set fire to their homes.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.
Pip is a great proponent of strata rights management – partly, at least, because its his job to do so.
However, on-site managers are not a the magic bullet solution to overcrowded apartments – far from it.
In the past I have encountered managers who were running exclusive real estate businesses and short-term rentals for the benefit of non- resident owners, in defiance of the buildings’ own by-laws and local council planning approvals, and to the great detriment of residents, both owners and long-term tenants.
And that’s before you even mention the in-built corruption of developers selling strata rights management agreements to managers and then pushing approval of these contracts through the first AGM before owners have a chance to get themselves organised.
The manager than has to charge additional money to the Owners Corps to repay what they have paid the developers – and that’s before they even charge for the services they actually provide.
If the Strata Rights Management people could embrace a system where there was genuine transparency – where potential owners were informed that a building had an on-site manager who had paid X amount for the contract, had exclusive rights to let apartments and, by the way, this building is probably better suited to investor owners, then I would be more convinced.
But we don’t get that. Instead we get managers harvesting proxies from investors, then running the buildings to suit themselves and their ‘mates’, controlling the flow of information, and the owner residents can like it or lump it.
I have been banging this drum for nearly 10 years now and I have yet to have even ONE resident owner tell me they are glad they bought into a building with an on-site manager.
That said, I’m sure there are very good and diligent on-site managers looking after their buildings to the benefit of all owners. But to the average Joe or Jo looking to buy an apartment, there’s no way of telling the good from the bad until it’s too late.
It’s an entirely unregulated area of strata living where, yet again, the problem starts with putting more money in the developers’ pockets and nobody gives a damn about what happens after that.
What are the qualifications and training for an on-site manager? The law demands you undertake more training to be a cocktail barman.
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The ‘Who’s Responsible …’ Memorandum says that the Owners Corp is responsible for damage caused in repairing a fault in common property but seems to suggest that the OC is not responsible for damage caused by a failure of common property in the first place.
Now, bearing in mind that this is an advisory document and not the law, and that what insurers do and don’t cover has nothing to do with who is and isn’t responsible, I would think anyone who has a claim against their Owners Corp for damage to their property caused by a failure of common property should proceed straight to the small claims court and not even bother with the CTTT where logic is usually most obvious by its absence.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.
That’s the smart move. Appealing against the decision is a no-brainer and just part of the process to get the right decision made. Meanwhile, I would get a by-law about air-con drawn up so you can prevent the spread of them you so rightly fear.
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You are not alone! My own EC was defeated in an almost identical case by failing to provide enough of the right paperwork in a clear-cut issue of a by-law breach.
The problem here is the process which allows for a initial adjudication based on written material only. So we get these jumped up failed solicitors making rulings based on nothing more than what they read and understand – which is often limited in itself – without either side able to correct any misapprehensions.
Appeal and you or your strata manager will be able to present a case in person at a hearing where there is a much better chance of common sense prevailing. This system is so fundamentally flawed that there is a very, very good chance that it will be swept away in the next review of strata law.
Meanwhile, we have to live with a system where the wackiest clowns of the CTTT make bizarre rulings based on a picket-fence attitude to property, rather than a sense of what the majority of a community wants. The sooner the paper adjudication goes and some of these paper shuffling simpletons can be put out to pasture, the better.
I have to say,though, in our case it doesn’t help that a couple of dominant members of our EC are running a covert agenda to have air-con allowed into the building.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.
@scotlandx said:
I’m confused about that, subpara 4(2) of Schedule 3 says the OC must appoint someone to the vacancy, but there is no indication of how they are appointed/by whom.Standard interpretation of this is that the EC, acting on behalf of the Owners Corp, appoints the new member to fill the vacancy. It’s worth noting that, like many of the regulations in strata law, there are no penalties for failure to fulfill this duty … so it doesn’t get done when it suits the powers that be not to do it.
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Not quite right – a casual vacancy member is elected by the EC (Executive Committee) not the OC (Owners Corp) – but I’m guessing that was just a slip of the typing finger
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Going back to the start with this, Deliria, why do you assume the Owners Corp will refuse permission? The developer can have no more than 49 percent of the votes at the very most – but it would seem churlish in the extreme of them to vote against you.
Just another point – has the first AGM been held and is there an executive committee and strata manager in place?
Given that you are locked into this purchase, they are the people with whom you should be negotiating.
Also, I don’t even see how removing paint is a common property issue. They’d be quick enough to tell you paint is your problem if the shoe were on the other foot.
Is your lawyer a strata specialist or just a regular conveyancing solicitor? If it’s the latter, it would be worth making a call to a strata lawyer who will be able to give you a very clear idea bout your options once you settle. Have a look on our sponsors page or links page for some ideas.
Finally, regarding my cavalier comment about ‘walking away’ – you are still in a postion where you can make this a positive experience for you. It will require a shift in thinking from the understandably combative approach you are taking now, but for the sake of your future peace of mind, you need the developer (and more importantly Owners Corp, Executive Committee and Strata Manager) to be your friends, not your enemies.
However hard that may be to swallow, it will make all the difference for the future – trust me, I’ve been there, done that and paid the price for getting it wrong.
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And they tell me they don’t need Flat Chat in Victoria …
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I also think if the tree branches extend into common property air space (usually 2.5 meters above the lot, I think) then they become an Owners Corp responsibility.
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If you aren’t prepared to take your lawyer’s advice – and that’s your prerogative – then I would walk way from this. In fact, I would have been long gone by now. Being badly treated by the developer/builder before you even settle is a very good indication of how they will treat you after they’ve got your money.
I recently had the chance to get in early in a prestige new development but the contract was huge – enough to fill a massive ring binder. My lawyers asked for an extra week to read it (three rather than two) before we signed but the developer refused. We pulled the plug. It wasn’t the only reason but we got the sense that this could be a problem development if it wasn’t handled right and the contract issue was a bad sign.
I know you feel wronged here and you are entitled to what was agreed in the contract but getting what you want can take a lot of time, money and emotional energy, now and in the future. These builders haven’t behaved well and there’s unlikely to be a massive change in their attitude once you have settled.
The very idea that they might play games on the defects after you have moved in should be enough to get you backing out of this as quickly as you can.
One more thing about the CTTT; as you aren’t yet an owner you have no ‘standing’ so that isn’t an avenue open to you.
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