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It has been fairly well established that the fact that you are attempting to get defects fixed by the builder doesn’t mean that your duties as an Owners Corporation to maintain and repair common property are somehow on hold.
You need to make sure that the repairs are done by reputable and experienced contractors and you also need to get three quotes to show that you have performed “due diligence” on the contracts. However, I am led to believe that if you have taken all possible care to a) establish that there is a fault and b) make sure it is fixed for a reasonable fee, then the developers may find it even harder to argue in court that there was no defect. You may, however, have to at least give them the opportunity to fix the defects themselves. Regarding your insurers – you need to talk to them about any concerns they may have.
As regards financing the repairs, you can raise a loan through a company like Lannocks (who advertise at the foot of theis websites home page) or the cashed up owners could offer to lend money to the Owners Corp until such times as the defects case is resolved.
But getting individuals to pay for the work and then try to get the money back from the developer or the Owners Corp would be the worst possible option – next to doing nothing, of course.
Chris Mo’ane at IBC (who advertise on this page) will give you good advice on a strategy going forward.
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Well, that’s me put in my place. I have to admit it hadn’t occurred to me that there would be insurance issues. I did think about the planning implications but that ship has already sailed.
One thing that does occur to me is that if the EC goes into this all heavy-handed and full of righteous indignation, the new owner is likely to feel as if they’re under siege.
“Speak softly but carry a big stick” would seem to be most productive approach here.
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I contacted the Tenants Union NSW for definitive answer (because they actually KNOW about this stuff, whereas I just have an opinion) and this was their legal advisor’s response:
We would say the Act is clear that the landlord has, under s52(1) of the Act, or clause an obligation to provide the premises in a reasonable state of cleanliness. This would relate to both the grease and the mould.
Further, under s63(1), the landlord has an obligation to provide and maintain the premises in a reasonable state of repair. This could relate to the cause of the mould.
For ease of reference, those two sections of the Act are clauses 18.1 and 18.3 in the standard form tenancy agreement. The words used are slightly different, but in a dispute the words of the Act are the ones to rely on.
Mould is a contentious issue- it can caused by a landlord’s breach, by failing to repair a cause of dampness, or having inadequate ventilation in a room. It can also be a tenant’s breach by failing to ventilate properly. At the beginning of a tenancy however, it would be impossible to argue it is anything but the landlord’s responsiblity.
The tenant should ensure they note the grease and mould on the condition report. Their responsibility is to return the premises in a reasonable state of cleanliness- with regard to the condition of the premises at the start of the tenancy. In this case, that does mean that their obligation to maintain does not extend to the tenant cleaning the pre-existing grease and mould.
In order to start the breach process, the tenant needs to notify the landlord of the breach and give them opportunity to rectify. The notification can be verbal or in writing, but to ensure a tenant has good evidence if it does proceed to the Tribunal we would recommend a notification of the breach be put in writing to the landlord.
This notice of breach should detail what the tenant believes the problems are and asking for it to be rectified within a certain amount of time- we would normally suggest a week for cleaning, longer for more complex problems. If the problem has not been addressed in the time requested, then the tenant can put in an application to the CTTT for one or more of the following orders:
- that the landlord do the repairs/cleaning the tenant specified
- that the landlord compensate the tenant for losses the tenant suffered because the landlord did not do the repairs
- that all or part of the rent is paid to the tribunal until the repairs are done
- that the rent is reduced for the period that the premises are/were in disrepair.
For the first three the application to the Tribunal must be made within 3 months of the landlord failing to meet the deadline for repairs. For the last they can apply at any time before the end of the tenancy, but the Tribunal can only go back 12 months.
For more information on these things, tenants can also read the following factsheets
Leo Patterson Ross
Legal Support Officer
Tenants’ Union of NSW
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Just a general point about renovated older buildings like warehouses: such defects provisions as there are don’t apply to the original structure – only to additions that were built or installed and then only in the last six years. The flooring joists will almost certainly be common property but they will just as certainly not be covered by defect insurance unless they were installed at the time of the renovation.
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KP is right. The Owners Corp is reposnible for any changes made to Common Property prior to the current owners’ purchase – but they could demand that the current owner allows them to reinstate Common Property at their expense (an unlikely scenario but a bargaining chip, nonetheless).
However, it is possible that his interior wall had little bearing (no pun intended) on common property, in which case the question is moot. However, it would be worth opening negotiations on an amicable basis to check if this was a load-bearing wall and what might need to be done to make sure there are no problems in the future. If it wasn’t load-bearing or if it was and adequate supports were installed then I would just let it go.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.
We had a heated debate over child safety nets on balconies … don’t know how cat nets will fare (although I’m in favour myself)
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I’d just like to ad that, as well as alerting council, you should look at your strata plan’s by-laws and see where breaches have occurred, hold an executive committee meeting and issue a Notice To Comply for each of the by-law breaches you can prove.
And you should alert the Fire Services to probable fire safety breaches.
In other words, firstly make sure you have proof then hit them with everything you’ve got.
You’ll find the offiicial Notice to Comply form HERE
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It’s a growing problem, judging by this article. Obviuously, this needs to be stamped out before more innocent students die in fires. But the only way that will happen is if Owners Corps have the right to enter and inspect (on reasonable grounds) and the later-day Rachmans who exploit the rental market like this are jailed and have their properties taken from them.
But one thing worries me – where do these kids go when they are kicked out of these hot-bunk Hell houses? Surely there’s some reliable agency that can set up safe shared houses and flats for them where they are paying the same money but not overcrowding.
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Our building had the original architect as a member of the EC – even though she wasn’t an owner – in the first few years of its existence to help us deal with defects and settling in issues.
But as a general point, who is going to serve a building better – a long-term tenant or an investor owner who may only be interested in the short-term profitability of their investment (which often means “keep levies low until I can sell at a profit – and to Hell with the sinking fund”).
I’d prefer a ban on non-residents serving on ECs rather than non-owners.
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Firstly, I don’t disagree with anything Scotlandx has said below and if the decision is to reinstate the garden, the person who ripped it up should pay the bill (as outlined in the strata Act.
I would imagine that a half decent awareness campaign would make sure this person did not get the requisite 75 percent vote allowing them to annex the garden.
However, there is another possibility here and that is the establishment of a communal garden where residents can work together and collectively to create a communal vegetable and herb garden and literally enjoy the fruits of their labours. The GreenStrata website has a number of case studies on how this has worked in many inner city buildings HERE. It’s worth a look and may offer a non-confrontaiional compromise solution that works for all concerned.
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I’m going to take a punt here and say that becasue the stairs were built on common property with the clear knowledge of the Owners Corp at that time, they ARE common property unless there’s a document that says they aren’t.
However, I am not a lawyer and I haven’t seen the plans; this is a serious issue and it’s time you have a chat to a strata lawyer about your options. I would think they would include:
A clear and definitive assessment of what is and what isn’t common property.
A letter to the members of your EC warning them to stop the harassment or they will be served with an AVO.
If the lawyers believe the stairs are common property you would then want a letter to the EC warning them that if they continue to resist paying for the repair of the stairs and someone is injured in an accident, they may not only be liable for damages but could individually face criminal charges under the new Work Health Safety laws.
Go HERE for contact details for Makinson & D’Apice, send them an email, tell them you raised the issue on Flat Chat and ask them what they think (and how much this is likely to cost)
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@considerate band fair said:
I was under the impression only an Owner could be a member of an EC. In my building only Owners are permitted a position as well as only Owners attending meetings, unless of course we invite a tenant or have a request from a tenant to attend a meeting regarding an issue that concerns their Lot and the Owner has not been responsive.I’m afraid your Owners Corp has been breaking the law if an owner has been prevented from nominating a non-owner to the EC.
It’s tru that only Owners (or their proxies) have the right to attend EC meetings. But you can nominate anyone to an EC (although if the number of candidates exceeds the number of nominees they have to be voted in).
There are cases of long-term tenants being elected to ECs because their landlords think they will look after their interests better than their owner neighbours (especially the non-resident ones).This is what the Act says:
A person is not eligible for election as a member of an executive committee unless the person is:
(a) an individual who is an owner,
(b) a company nominee of a corporation that is an owner, or
(c) an individual who is not an owner but who is nominated for election by an owner who is not a candidate for election.
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@DesertDweller said:
I take offence at that last comment.Why are you taking offence? If I’d thought it was a plant I would have binned the comment. And it wouldn’t have been the first time in the history of the Internet, or even this website, that someone has supported a friend’s product with a glowing report. I was suspicious since it came in very, very quickly (less than 24 hours) after the initial mention of the service.
I said ‘please tell me it’s not a plant’ and now you have. Relax.
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@Bev29 said:
Hello can anyone advise the procedure for removing animals? Has anyone succesfully done this or encountered problems. It appears it could be a lengthy costly drawn out process.Firstly, what do your by-laws say? Next, is there a proven case of nuisance (noise, weeing on common property, attacking residents)? Finally, is there any suggestion that it’s affecting someone’s health (which comes under strata law rather than by-laws)?
It’s only going to be as long and drawn-out if you go into this half-heartedly. But if you have any or all of the above boxes ticked, I would sit down with the owner and ask them how you can do this in a civilised fashion.
But don’t forget that to may people their pets are their kids – which means they are never any trouble, they are above average intelligence and their ‘parents’ will fight to the death to protect them.
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