[Jimmy-T]

Normally I would turn to the “Who’s responsible …”  memorandum but this is one situation where its advice seems a little contradictory and more than a little confusing.

For a start, it says this is Owners Corp responsibility: “Water leaking through tiles or from one lot and affecting another lot or common property.’

However, it also says the lot owner is responsible for ‘damage to a lot caused by any water leak mentioned above as a result of the problem itself.’

Now, does that mean water leaking from another unit or does it just refer to damage within the lot where the leak occurs?  Every time I look at this I think I read it a different way

And just to confuse things further, it says that damage to lot owners property caused by effecting a repair to common property is the responsibility of the Owners Corp.

A couple of other things you need to bear in mind are that the memorandum isn’t law but it is the guideline to which your strata manager and the CTTT will turn to help determine any responsibilities.

Throw into the mix the question of whether or not the leaking bathroom was a common property issue – for instance, if unapproved work had been done on the bathroom or if approved work had been done on the proviso that the lot owner took responsibility for any consequences, that that changes everything.

However, this is how I see it – and am aware there are different views on this (some of which may have been expressed by me in previous posts).

The Owners Corp has to pay for the repair of the  leak in the bathroom (if it is in common property) and  the damage to the lot owner’s property, including damage caused in effecting the repair.

If there has been unapproved work done on the bathroom by you, the Owners Corp could argue that that was where the problem initiated and you could be liable for any claims that would otherwise have fallen to them.

If the unapproved work was done by a previous owner, the Owners Corp would have to accept responsibility.

If the work had been approved, you would look at the terms of any agreement or special resolution to see who was responsible for the repairs and maintenance.

Getting back to the memorandum, even though it isn’t law (unless it has been adopted as a by-law,) it will be used as a reference by adjudicators. And that’s why the Department of Lands (who pulled this all together with input from all sorts of stakeholders) need to clarify that point – who is responsible for water damage to another property by a failure of common property?

You can read the memorandum in full HERE.

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[Jimmy-T]

Hmmm.  The idea of important decisions being made by people who are three sheets to the wind doesn’t sound great, does it.

But there is a simple solution – put forward a motion that no alcohol be consumed until the last item on the agenda has been voted on.

Not only will decisions be made by clearer heads, the business end of the meetings will immediately get a lot shorter.

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[Jimmy-T]

Juan

I don’t disagree with anything you say here and I’m aware that there are the  Strata Management equivalents of Mega-Trawlers hoovering up small independents whose clients often find they have gone from being managed by a bloke round the corner in an Estate Agency that they could drop into, to a kid with a headset in a hot-desking office who has to spread their time very thinly between the maximum number of clients.

Part of the problem is that it takes as much time (sometimes more) to manage a small 12-lot walk-up as it does to look after a building 10 times that size, especially if the former is old and crumbling and the latter is shiny and new. But the strata management firm gets one-tenth of the income for doing more work.

In any case, your question is very timely because Strata Community Australia (the strata managers’ professional body) have just launched an initiative to provide accreditation for strata manager across the country.  Have a look HERE if you’re interested. 

On a general note, I think the actual strata manager is more important than the firm he or she works for; you get good SMs working for crap firms and vice versa. 

And as for these strata managers whose client lists are being absorbed by bigger firms, the contract can’t be sold without the individual Owners Corps’ permission. And that’s when we get back to your description of the uninterested and self interested. 

Whether we like it or not, the buck stops with us.  We can choose who manages our buildings and under what terms but, like everything else in life, you get what you pay for.  If an Owners Corp is obsessed with keeping the levies low and that means getting the cheapest Strata Manager, they shouldn’t expect them to do anything more than the bare minimum.

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[Jimmy-T]

I was about to write that the obvious thing to do here is to hire a building consultant but you have tied your own hands behind your back by not wanting to use a one. 

A building consultant or project manager would not only provide you with the professional expertise and experience but the best of them will have professional indemnity in case of anything going wrong. 

Allowing the insurer to choose the builder and then expecting them to ‘police’ them is just giving up too much control for the sake of not wanting responsibility (for something you rightly recognise is not in your area of expertise). Tell the insurer you want them to cover the cost of a “project manager” too, if cost is an issue.

At the risk of being accused of playing favourites (again), your next step should be to click on the IBC ad at the top of the page and talk to Chris Mo’ane about what your options are and how much they will cost.

You have had a big win – getting the remedial work done properly should be your priority.

On the question of the waiver, I don’t think that’s particularly fair as more defects could be revealed when  the remedial work is being done.  But, once again, you really need someone in your corner who has been down this road hundreds of times before and knows what can and can’t be done.  Click on the ad – it won’t cost you a cent.

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[Jimmy-T]

Juan
There was no intention to ‘verbal’ you, I was trying to get what you meant by leaving a “hollow” feeling. That’s generally taken as a negative, no?
But I’ll tell what really does annoy me – every time I defend any strata professional, someone says “oooh, it’s just because they’re your sponsor.”
Do you have any idea how insulting that is to me? When I read comments like that I get the urge to close the site, scrap the newspaper column and go back to writing books and TV scripts (which is what I should be doing anyway).
If you think I’m biased in favour of strata professionals because some of them sponsor this site, I think you may be posting to the wrong website.

Oh, and by the by, I don’t know how caveat emptor translates into Cantonese but I don’t see why it should apply to your home when it doesn’t apply to any other purchase you make, from a toy car to a real one.
.

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[Jimmy-T]

More info from ALLdamp

… the wooden floor between flats (1923) would be strata property.  {information edited at original poster’s request}  No idea if false ceiling was OK’d by strata, the owner below being on the strata committee! I don’t recall any such proposal, only their breaking open a door to the garden, I haven’t kept all the minutes…

This is a curly one , isn’t it?

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[Jimmy-T]

Juan Durection said 

… I AM saying the old disclaimer: strata managers “can only act as instructed by the owners corp and their elected representatives” is starting to sound very hollow. As does: “This building was marketed heavily to the Chinese community and owners may have had limited appreciation of what their rights and responsibilities were.”

Surely an ‘expert’, such as a Strata Manager, should make sure certain things are done and in place and frankly it’s time, since some make a ton of money (if they weren’t, why is one getting so huge and ‘acquiring’ a lot of others), to stand up and stop wriggling out of the responsibilities they surely must have instead of taking the money and running, absolving themselves of responsibility by saying we can only do what we’re instructed to do.

Juan, it reads very much like you are blaming the Strata Manager.  But as for Strata Managers only taking direction, I know plenty of strata managers who will sit with their ECs and say they need to do this and that but as soon as the cost comes up, all bets are off and nothing gets done.

Maybe we should have a system where the strata manager just goes ahead and does what he thinks is required by law.  But I can hear the wails of complaint already. In this case I would look right down the line starting with the developer, council planning officers and everyone else in the chain who decided to build this block the way they did before I got to the strata manager

It sounds to me like the Strata Manager in this case organised the fire safety checks, as he is required to do, and they were carried out and  orders were issued and they were complied with.

As for your objection to my reference to this being marketted heavily to the Chinese community, I’m not sure what your problem is with this. Is it with me mentioning it or the fact that it happened?

FYI: It seemss the sales material was at least partly in Chinese which suggests that many of the owners had English as a second language, at best.  As we know from reading this website, plenty of native English speakers have problems getting their heads around the intricacies of strata living. 

In my view the Asian community is being heavily targetted by unscrupulous developers who know they can get away with a lot more than they would if their customers were fully aware of their rights and responsibilities.  Is it wrong to suggest that?

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[Jimmy-T]

The strata manager, although they have certain legal obligations, can only act as instructed by the owners corp and their elected representatives, the Executive Committee. . From what I’m reading, it sounds like there were several fire ordinance notices served over the past few years but that they were complied with. This building was marketed heavily to the Chinese community and owners may have had limited appreciation of what their rights and responsibilities were. It will all come out in the coroners enquiry and I think the people of NSW are going to be shocked when the truth about strata living comes out

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[Jimmy-T]

Unless there is some mechanism by which residents of the other strata plan have agreed to abide by the by-laws of your strata plan then there is not much you can do (worth checking, though).  It’s the same as someone from a house down the street getting access to your parking.

However, I would leave a note on the car saying something like: “This car is not a bona fide visitor’s vehicle nor does it belong to a resident of this strata plan.  By leaving it here you are trespassing. If it is found in this space again it may be treated as an abandoned vehicle and towed onto the public highway where it will be removed by police.”

Now, threatening to that is one thing but actually doing it is probably illegal.  However, I can’t honestly say I wouldn’t do that if I were in your position.

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[Jimmy-T]

I was working on the basis that there was another motion coming up aty your AGM to seek further quotes.  If that isn’t the case, then, yes, propose a new motion for the AGM that the Owners Corp accepts one of the two quotes and proceeds with the work ASAP.

When you speak to the motion at the meeting explain that any decision to delay the work any further will result in you talking the Owner Corp to the CTTT to have an order issued  forcing them to do the work.

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[Jimmy-T]

Here’s something from left field.  I have been working on the basis that there is no legal compulsion in the Act for Owners Corporations to enforce their by-laws and action their decisions (because there isn’t).

However, I have recently been told by a very authoritative source that individual owners can take the Owners Corp to the CTTT and ask for an order to be made compelling them to do so.

The point that was made strongly to me was that it’s not the EC that you prosecute, it’s the Owners Corp as a whole (albeit that the EC will be expected to represent them and follow through on the order).  Any ruling from the CTTT not only puts the EC under pressure but gives a strata manager a lot of power to push for action and establishes a vital missing step on the road to the appointment of a statutory manager.

One point that was made to me was that it is important to make your initial approaches to the Executive Committee in writing so that their responses, or lack thereof, can form part of your case at the CTTT. The reality, I’m told, is that in most cases the EC will give an undertaking at mediation to move forward on the stuff they’ve been sitting on.  But, of course, you would want that in writing too.

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[Jimmy-T]

You might strike lucky and get an owner below who wants to do exactly the same as you do (at precisely the same time).  Otherwise this is a major job that will affect your neighbours in terms of noise and dirt and possibly structurally but only benefits you.  And, no, there is no mechanism in strata to make anyone fall into line with your plans.  Getting their approval should probably be considered enough of a plus.

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[Jimmy-T]

It sounds like the Owners Corp  was either wrong before or they are wrong now.  But there’s a difference between what’s fair and unfair and what’s right and wrong.  The only way you can establish which applies is to establish which bits of this are common property and which aren’t (and that means looking at the original strata plan).

However, I’m betting an external wall IS common property, in which case it doesn’t matter if it was wear and tear, damage by vandals, a missile attack from disgruntled neighbours or an act of God.  The only circumstances under which an individual owner would have to pay for the repair of common property would be if they damaged it themselves.  You clearly didn’t and if the previous owner did, then the Owners Corp’s beef is with them – but they still have to pay for the repairs.

This sounds suspiciously like the EC has put a claim in to their insurers and they’ve been told it’s wear and tear, therefore not insured.  That may be so but it changes nothing – the Owners Corp has an absolute responsibility to maintain and repair common property.  It’s not your problem if they can’t get their insurance to pay for it.

However, if by some quirk the previous owner had been given permission to erect the sun-shade and there was an exclusive use by-law to that effect, then the  chances are that the damage may well be yours to repair. But if that is the case it will be in the by-laws.  If it’s not in the by-laws, then it’s more than likely an Owners Corp responsibility.

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[Jimmy-T]

Any agenda item that has to be resolved by special resolution must, by law, be signified as such on the agenda.  Any item that has to be resolved by special resolution must pass with no more than 25 percent of of those voting at an EGM voting against.  In other words, you need 75 percent of those voting either in person or by proxy to agree to remove this person from the EC.  That is the standard basis on which votes are required to vacate a seat on the EC or create a by-law.

With the odds that are stacked against you (by the sound of things) you may not get this over the line, but you will have your day in court, as they say.  Any decent person would resign before the meeting to save themselves the embarrassment of being exposed as a … cough … slapper.

Sounds like the locked glass noticeboard is an attempt to curb your poster campaign.  Never fear, blu-tac works perfectly well on glass.

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[Jimmy-T]

It’s even dafter than that. If the downlight has no cover, it may be considered part of the lot but if it has a cover, itmay be considered common property. The first thing I’d do after the new strata laws come out is have a complete review of all by-laws … most of out by-laws were written before flat screen tvs were ever attached to walls or lights recessed into ceilings. Are your by-laws up to date?

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