[Jimmy-T]

@alley cat said:
This is a larger question – can one SP take another in the same complex, who use the same shared facilities, to the CTTT about unresolved issues, such as the use of visitor parking. 

The strata schemes will share facilities under another strata or community title scheme.  That scheme will have its own by-laws and either strata scheme can take action to have other members comply with their terms.

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[Jimmy-T]

@kiwipaul said:

Surely if owners make changes without approval which results in costs to the OC at a later date the lot owner (who did the alteration) is liable for all costs to repair the damage anyway so you don’t need an expensive bylaw to state the obvious (you already have one that restricts owners from damaging common property in most bylaws).

That’s true if the owner is still there when the damage or alterations become evident.  But if the renovating owner sells and the new owner doesn’t become aware until later that common property has been altered, then the repair and maintenance of the altered common property falls back on the Owners Corp – that’s why you need watertight by-laws that leave a paper trail of changes.

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[Jimmy-T]

Boy did we get side-tracked on this one.  I just went back and looked at the original question as I was writing my column for next weekend. 

Here are the facts – some of the heavy stuff is Sarah_1’s, some is her landlord’s.

There’s no question that she is going to have her life disrupted while this work is going on, temporarily diminishing the value of her rental property.

She doesn’t have to touch the landlord’s stuff if she doesn’t want to.  So why doesn’t she ask the landlord to pay for all the stuff, including hers, to be moved and replaced by way of compensation for the inconvenience and disruption that she’s having to put up with.

There, that wasn’t so hard …

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[Jimmy-T]

It may be that they are just trying to find out what’s been going on or it could be that the person you are writing to doesn’t have a clue what they are supposed to do about the material on their website.

However, generally the Strata Manager is answerable to the Executive Committee in the first instance and the Owners Corp ultimately. They don’t have the same obligations to respond to individual lot owners (or they would spend their lives chasing individual queries).

If the Strata Manager and the EC won’t address the issues, you should approach Fair Trading about arranging a mediation.

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[Jimmy-T]

@alley cat said:
Hi 

I think something is missing here – if grandson is ‘visiting’ grandma, then why doesn’t he simply use her car park?? If the SP has visitor parks then it will also have individual parks too.

Good thinking but not all units have car spaces.  There is an increasing trend in new buildings to deliberately not have enough car parking to go round so as to ‘encourage’ people on to public transport. In much older buildings, car parking was often only available to the select few.

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[Jimmy-T]

I admire your patience but I think you might be right that these clever-clogs are stalling.  If there is a continuing problem with noise form the dumb waiter, you should pursue this with the CTTT and, at the very least, demand that they show you the plans. 

If they have no plans drawn up, you can assume it’s a smokescreen and demand that they fix the noise problem regardless of their fanciful notions of installing a lift. 

However, I suspect strongly (as i think you do too) that they may be having a lend of you.

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[Jimmy-T]

NSW Strata Law demands that a by-law be passed when common property is to be altered or used solely by one lot owner.  In our building we recently had two owners who retiled their bathrooms without permission.  All we had to do was retrospectively pass by-laws giving them permission but passing responsibility for the maintanance and repair of the affected common property (the waterproof seal, for instance) to the lot owner.

In a kitchen renovation, things like water and water pipes could be an issue, depending on the extent of the renovation.

There’s clearly a need, however, for a quick, cheap and simple way of allowing renovations without having to re-write by-laws from scratch every time.

This is what the Act says:

65A   Owners corporation may make or authorise changes to common property

(1)  For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:

(a)  add to the common property,

(b)  alter the common property,

(c)  erect a new structure on the common property.

(2)  A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.

(3)  If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.

(4)  A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:

(a)  the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and

(b)  the owners corporation makes such a by-law.

(5)  A by-law made for the purposes of this section:

(a)  may require, for the maintenance of the common property, the payment of money by the owner concerned at specified times or as determined by the owners corporation, and

(b)  must not be amended or repealed unless a special resolution has first been passed at a general meeting of the owners corporation and the owners corporation has obtained the written consent of the owner concerned.

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[Jimmy-T]

I hate censoring people but I would hate even more if this descended into one of those websites where people hurl abuse at each other from behind the Sofa of Anonymity.  So I am calling for a ceasefire on this one because it doesn’t get us anywhere.

If the advice we have given is demonstrably incorrect (rather than you think the law and/or this writer is stupid) please let us know.  It will be published.

If however readers want to tell the world that I am an idiot – I’m afraid that ship has sailed. It’s a well-know fact, as “any fule no“.

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[Jimmy-T]

@kiwipaul said:

I don’t see WHY you need a bylaw to do any internal renovations that doesn’t affect the structure or outward appearance of the property. What you do within your own home is yours business (so long as it doesn’t affect other residents adversely). I’d ignore this rule the same as your neighbors have done.

QLD just requires a simple majority vote authorizing these type of alterations and then only if it’s visible form outside the lot or structural.

I think the blanket demand for a special resolution by-law for all renovations isn’t only excessive and a disincentive to asking for permission, it’s probably not strictly legal.

However, if the renovations impact on common property in any way, then it is absolutely essential as it’s the only truly effective way the other owners can protect themselves against bad workmanship and damage to common property for which they could end up paying.

If the renovations don’t impact on common property, the lot owner doesn’t even need permission from the EC unless it says so in the by-laws. 

Why would there be permission required in the by-laws?  To control noise, dirt, times of work and access.  Older buildings, especially, should be make sure there is a workable set of by-laws in place before their aging apartments turn into a permanent building site and everyone’s evenings and weekends are destroyed by DIY renovators.

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[Jimmy-T]

@leahzbaker said:

According to the NSW Department of Fair trading website: 

“If your landlord serves you with a termination notice you can move out any time before the notice ends without having to give your own notice. If you were given notice because of the end of the fixed term, you are responsible for paying the rent until the last day of the fixed term. Otherwise no further rent is payable from the day you hand back vacant possession after getting a termination notice from the landlord.” (Quote from the government website).

This information seems to contradicate the advice you have given in this forum. Can you please confirm which one is correct.

Hi Leahzbaker

Thanks for finding the above section from the Fair Trading website.  What I wrote clearly only applies to fixed term lets but I should have noticed that the original posters are probably on a continuing tenancy.

I checked the Fair Trading website and then dug around TenantsNSW and found this on FactSheet 10 which deals with landlords ending the agreement: “At any time before the termination date, you may give vacant possession. Upon doing so (except at end of a fixed-term agreement) you can stop paying rent.”

So, if we assume Glinijay is on a Continuing Tenancy (and he/she did say their lease had expired so they probably are) you’re right and I was wrong.

I will fix this on the online version of the story.  Thanks for pointing this out. I’ll write to glinijay directly and tell them the good news.

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[Jimmy-T]

@Les Dansonne said:
You guys rock!!! After all, she IS only a TENANT. With all her stuff all over COMMON PROPERTY too. She should definitely have to move it herself. You have all finally convinced me. Over and out.

What a cheap shot. It’s got nothing to do with her being a tenant.  In fact we have suggested she asks for a rent reduction from her landlord to cover her costs and all the disruption. If she were an owner, we couldn’t even suggest that.

What do you want, Les?  We tell her how it ISN’T? Tell her to fight this at the CTTT, in a battle that isn’t worth hassle and which she’s bound to lose (or at least not win any financial compensation)?  Tell her to barricade her doors and not let the workmen in? And all because you think it’s ‘unfair’ (which it may be but that is not the point).

We try to give people the best advice we can based on how things are and not how we think they should be. If she asks her landlord, they might pay for the stuff to be moved. 

If that fails she could admittedly go to Fair Trading and ask them to order a rent reduction but she’d have to consider the consequences of the Fair Trading route – a gamble that might end in her losing her tenancy at the first possible opportunity.

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[Jimmy-T]

@Les Dansonne said:
Hi again Sarah 1.

I definitely think that, despite what the experts may say here, there’s no need for you to simply accept the ‘rough end of the pineapple’.

Ask nicely and eloquently that all the stuff on you balcony is relocated for you at anyone else’s but except yours and you could also ask for a rent reduction for any inconvenience in not being able to use your your balcony as well as having workmen traipsing through your flat.

That is obviously the right and fair thing which should occur.

Nothing obvious here. And as for what the much-derided “experts” say

From ScotlandX:

If it’s her stuff, perhaps Sarah should consider moving it and approaching her landlord about a reduction in rent to take account of the costs and the fact that she won’t be able to use the balcony while the repairs are being effected.

Chris Mo’ane suggested a balanced approach and I suggested taking responsibility for your own stuff but not anyone else’s.

Les’s approach is to ignore “experts” and follow the wishful thinking approach.  Good luck with that – it’s usually SO effective.  But before you go too far down that road, check out your actual rights and obligations because sooner or later someone is going to point them out to you, possibly quite forcefully.

It doesn’t matter if you are a tenant or an owner, if your personal property is on common property you have to move it if repairs are required.  You also have to give the Owners Corp access to the unit so repairs can be effected.

Yes, talk about a rent reduction to make up for the disruption, but as for sitting back and demanding that someone moves your stuff off their property at their expense, you’ll be whistling in the wind.

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[Jimmy-T]

Les, that’s not what I said. You are quoting KiwiPaul and you are developing a bad habit of misquoting people then attacking them for what you misquoted.

Let’s put that one down to confusion in the way KP’s post was presented but in any case, your information is wrong.

We recently had to re-vote by-laws that had been passed but not registered within the two years due to an oversight.

So what or who is your “reliable” source? Or are you misquoting them too?

Here’s a reliable source – this is what the Strata Act actually says:

Division 3 Amendment or repeal of by-laws

47 Can an owners corporation add to or amend the by-laws?

An owners corporation, in accordance with a special resolution, may, for the purpose of the control, management, administration, use or enjoyment of the lots or the lots and common property for the strata scheme, make by-laws adding to, amending or repealing the by-laws for the strata scheme.

48 What steps must an owners corporation take to make an amendment effective?

(1) An amendment or repeal of a by-law or, a new by-law, has no force or effect until:

(a) the owners corporation has lodged a notification, in the form approved under the Real Property Act 1900, in the Registrar-General’s office, and

(b) the Registrar-General has made an appropriate recording of the notification in the folio of the Register comprising the common property.

(2) A notification cannot be lodged in the Registrar-General’s office more than 2 years after the passing of the resolution for the amendment, repeal or new by-law.

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[Jimmy-T]

@Petard said:
Our upstairs duplex owner has informed us of their intent to convert their aged and excessively noisy dumbwaiter into a lift – to carry people instead of groceries and luggage. The dumbwaiter joins their basement garage to their floor above our apartment; the shaft runs through our bathroom. They claim that it won’t have anything to do with us, nor will require any council approval.

To quote The Castle, tell them they’re dreamin’.  It’s a shame you can’t convert dumb people into elevated characters as easily.

1. This will almost certainly require council approval.

2. It will seriously affect common property and will therefore require a 75 percent vote in favour (i.e. your approval).

3. The Strata manger is right – he needs to see the detailed plans

4. The upstairs owners need to take care of all the legal expenses involved in what I think would be a series of by-laws to protect you as co-owners and the building as a whole.

5. There has to be legal protection for you from noise during the construction and daily operation of the lift written into the by-laws.

On the plus side, this may be an opportunity to sort the dumb waiter noise problem which, if I recall correctly, brought you to Flat Chat in the first place.

The good news is that because of the special resolution requirements, you have the whip hand here.  Nothing happens without your say-so.

At the risk of being accused of shamelessly spruiking our sponsors, the first call I would make would be to Chris Mo’ane of IBC (because he will understand both the engineering and legal implications of all this) and the next one would be to your neighbour saying if they don’t listen to (and pay for) your choice of expert then they can keep climbing those stairs.

Why would they pay for IBC or any other consultant?  Because whoever is giving them advice at the moment is an idiot who doesn’t understand the first principles of strata living or strata living.

It’s to their advantage to get properly qualified and experienced professionals in right from the start.  It will save both parties money and heartache in the long term because you won’t spend the next two years at the CTTT and Supreme Court fighting over bad decisions based on irresponsible advice.

It’s as simple as that.  Ask them if they’re serious and, if they are, lay out the conditions for your approval without which this plan won’t get past square one.

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[Jimmy-T]

As Chris says, if it’s her stuff she has to move it – regardless of whether or not she’s a tenant. If it’s the landord’s stuff – ie permanent planters etc, then the landlord should pay for it to be moved. And if the planters happen to be common property (unlikely) then the Owners Corp has to pay for them to be moved.

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