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“Ivory Tower credentials”, Les? Really? He’s a bloke who is qualified more than most to give advice that you happen not to agree with. He may be wrong (I doubt it) but there’s no need to sneer at someone just because they have earned the right to express an opinion (for which we would otherwise pay). There’s no conspiracy here.
As for his advice to Struggler – have a look at what Struggs said HERE.
That whole issue of your EC insurance being contingent on you having fulfilled your duty of care and due diligence is so obvious when you read it but will be a real slap in the face to those cowboy EC members who think they have immunity from any responsibility.
And hey, if I was building an Ivory Tower, Chris Mo’ane would be the first person I’d consult (and he would tell me not to be such a bloody idiot).
On the question of consulting a lawyer, I often say that too and here’s why – it’s a reality check for everyone who’s bashed their head off the brick wall of an incompetent executive committee or whatever. The question it raises is, how much are you prepared to pay to resolve this issue? And if you’re not prepared to pay anything or very much at all, the next best piece of advice is often “so learn to live with it.”
But what I’m doing less frequently these days is telling people that the best or only thing to do is rock up to Fair Trading with $78 in your hot little hand and spend the next few months of your life trying to get a decision over a petty issue.Most lawyers will give you a free initial consultation (often by email) to tell you what your chances are of winning and how much it will cost to do so. I really can’t see the harm in that.
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This is what Chris from IBC actually said:
The bottom line is that the OC would have the right to request that you temporally remove the furniture, pots etc that you may own. The rest which I assume belongs to the unit Owner is up to them to remove.
Keep a balance approach on this as its to your benefit to have the repairs done. Give the Agent a call or talk to your EC committee members, a team approach would seem to be the answer to me.
… and this is what Les Dansonne said:
Interesting how ‘the big end of town’ sees things.
For what it’s worth, when we’ve had work done on our balcony – OC work on common property – we’ve been instructed to remove planters etc at our own expense, the logic being that the balcony isn’t actually ours (it’s common property) so having planters or anything else there is allowed at the OC’s discretion but is our responsibility.
And really, what has the “big end of town” got to do with anything? All this “them and us” stuff gets us nowhere. Nothing wrong with a balanced approach, is there?
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New by-laws over-ride previous by-laws but, to make sure, there should have been a motion carried to rescind the previous by-laws when the new ones were accepted. Otherwise someone might argue that there were two conflicting by-laws in place and then start the merry-go-round of which one applies (common sense having flown out the window).
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Byron Twain wrote:
Are we legally compelled to create By-Laws? If not do the Model By-Laws apply? Some sparkling clarity would be greatly appreciated —
Sorry, Sir .. we only serve ‘still’ clarity in the Flat Chat Cafe … but then it does run deep.
To answer your question, I have been told that if a strata plan is created and no by-laws are formally adopted then the ‘model’ by-laws that were in place AT THAT TIME come into effect. I say ‘at that time’ because the model by-laws don’t update automatically when they are changed by the powers that be. Once they’re in place, they can only be changed by a special vote of the Owners Corp.
However the strata schemes freehold development and leasehold development Acts seem to demand that by-laws have to be presented when the strata scheme is registered.
I have been told that there is a quirk in the legislation that Owners Corps can decide not to have by-laws …but I’ve never heard of this happening and I’m not even sure if it’s true. Even so, that would require a decision to be made.
In your case, if there really was no decision to accept by-laws then you need to find out the model by-laws that were on the books when your strata plan was formed because it may be that’s what you’ll have whether you want them or not.
Now stand back as a stampede of legal eagles (if you can have such a thing) tramples me into the ground with the facts.
While we’re waiting for that, here’s what the NSW strata Act says:
Division 1 What by-laws apply to a strata scheme?
41 What by-laws apply to new strata schemes?
(1) This section applies to strata schemes that came into existence after the commencement of this section.
(2) The by-laws in force for a strata scheme are the by-laws adopted by or lodged with the strata plan registered by the Registrar-General for the strata scheme, as in force at the date of lodgment, subject to any amendment, repeal or addition recorded by the Registrar-General under section 48.
Note. Section 8 of the Strata Schemes (Freehold Development) Act 1973 and section 7 of the Strata Schemes (Leasehold Development) Act 1986 require that when a strata plan is submitted for registration it must be accompanied by the proposed by-laws for the strata scheme. Those by-laws are registered with the strata plan.
42 What by-laws apply to old strata schemes?
(1) This section applies to strata schemes in existence before the commencement of this section.
(2) The by-laws set forth in Schedule 1 are the by-laws in force for a strata scheme, including any additional by-laws, or any amendments or repeals relating to those by-laws, that have been registered for the strata scheme in accordance with:
(a) Division 3 of this Part, or
(b) Division 1 of Part 4 of the Strata Schemes (Freehold Development) Act 1973 as in force immediately before its repeal, or
(c) Division 1 of Part 4 of the Strata Schemes (Leasehold Development) Act 1986 as in force immediately before its repeal.
Clarity yet? This is what Section 8 of the Strata Schemes (Freehold Development Act) says:
(4B) A plan intended to be registered as a strata plan must indicate:
(a) that specified model by-laws prescribed by the regulations made under the Strata Schemes Management Act 1996 are proposed to be adopted for the strata scheme and, if those model by-laws contain one or more alternative versions of any by-law, that the specified version of that by-law is proposed to be adopted, or
(b) that other specified by-laws are proposed to be adopted for the scheme.
(4C) If a strata plan indicates that by-laws other than the model by-laws prescribed by the regulations made under the Strata Schemes Management Act 1996 are proposed to be adopted for the strata scheme, the plan must be accompanied by the by-laws specified. The by-laws must be in the form approved under the Real Property Act 1900 and must have been signed by the persons required to have signed the strata plan under section 16 (1).
(4D) The proposed by-laws for a strata scheme have no effect until the strata plan (and any proposed by-laws that are required to accompany it) are registered. However, registration does not operate to give effect to by-laws that have not been lawfully made.
Section 7 of the Strata Schemes (Leasehold Development) Act says pretty much the same.
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I was a bit confused between balconies and terraces, too.
FYI: You can’t assume that balconies are the responsibility of the lot owners – in fact, in modern buildings (about 20 years and newer) the opposite is more likely to be the case. Because of their importance to the structural integrity of the building, in newer buildings in NSW balconies are almost always common property with the lot owners allowed exclusive use of them.
However KP’s advice on the membrane is spot on (and applies to most balconies too). Again, check your strata plan and if you are still confused, get a strata lawyer to look at it for you. Once you’ve established what’s yours and what isn’t proceed as appropriate.
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I would say the chances are that the roof terrace is common property and therefore it won’t be covered by your insurance.
Unless the building is less than six years old, it won’t be covered by home warranty insurance and I doubt if whatever building insurance your Owners Corp has would cover something that probably comes under normal wear and tear.
Too many imponderables. Establish if the roof is common property – it probably is – then ask the Owners Corp to fix it.
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I think the reason it wasn’t made law was because there are so many variables between strata buildings. The good thing about the Memorandum is that you can go through the document and remove or amend items to suit the prevailing conditions in your building before you establish the by-law.
And even if you don’t, as we’ve said, it’s a document that strata managers and CTTT adjudicators can use as a benchmark when they are scratching their collective heads over the latest dispute.
As for it being a cash-grab – I reckon this document is going to save so much time and money at the CTTT it would be worth them paying strata plans to adopt it (or an amended version).
Actually, that’s a brilliant idea. I’ll bring it up the next time I’m invited round to Fair Trading for tea.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.
@kiwipaul said:
I found the following excerpt from: Principles and provisions of Memorandum No AG600000 …
It is produced by NSW Gov but it seems it needs to be approved by your OC to be valid. Don’t fully understand the implication.
Hi KP, this is the famous “Who’s responsible for what?” memorandum, issued earlier this year as a guideline for disputes over strata responsibilities.
It is very handy when there are no clear definitions of responsibilities in the strata plan or by-laws. And you’re right, it has to be adopted as a by-law if buildings want to use it a a set of rules rather than guidelines. However, it’s probably the first document a CTTT adjudicator will look at when a dispute like this hits their desk – not because it’s the law (it isn’t) but because it gives them a consistent set of answers to tricky problems.
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The only way you can tell for sure whether or not the roof is common property is by checking your strata plan which should have been part of your purchase contract.
However, the chances are that it is common property as the roof is such an important part of maintaining the structural integrity of the building.
I doubt very much if the building warranty will be of any use to you unless the building is less than six years old and lower than three storeys in height.
So make your claim but remember the repairs will be done to the Owners Corp’s standards, not necessarily yours, so be prepared to compromise if you want the terrace to look as good as it might. By compromise, I mean put some cash in to get your choice of tiles laid, rather than theirs, if that’s an issue for you.
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Glinijay said:
Our lease has expired and as the owners wish to move in we have been given 90 days notice to vacate our rented premises. Do we still have to provide the 21 days notice if we wish to leave earlier than the date in the vacation notice?
Technically, yes, but there are lots of conditions under which you can vary that. Have a look at this fact sheet produced by Tenants NSW to see if any of them apply to you.
However, I would be asking the agent if the owners really want the full 21 days or would they like to get in earlier. It’s the kind of thing that can work for both parties and you may not need to get into the legalities of it at all … apart, of course, from having their agreement in writing to make sure you get the bond back in full.
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It sounds like the Owners Corp has decided it’s easier to make individual owners pre-emptively responsible for their decking than it is to pursue them for the cost of repairing common property that they may have damaged. This is one of those cases where we all need to get our heads aroung the concept the the Owners Corp isn’t “them” … it’s “us”. And if you want the Owners Corp to be responsible for your decking, then be prepared to be responsible for everyone else’s.
I don’t think there’s anything particulalry sinister in all this as it puts responsibility for common property that doesn’t have any immediate bearing on the integrity of the building back where it probably belongs.
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To pass a by-law you need 25 percent of owners, in person or by proxy, for the quorum and no more than 25 percent of those voting to vote against the by-law for it to pass.
One vote out of four is not a fail unless that person calls for a poll vote and they have higher unit entitlements (the basis on which your levies are calculated) than the others.
The six out of eight would only apply if all eight owners voted either in person or by proxy. The vote is based on those voting, not the number of owners in the scheme.
If you were not one of the three who turned up – i.e. it was one vote against versus three votes for – the vote would be carried.
Yes, you can raise the issue again at the AGM and this time you should male sure you have the numbers.
The first thing to do is have a chat with the ‘no’ voter and ask them why they rejected the motion. If it’s questions about noise and dirt etc, offer any concessions you possibly can – llimit times of noisy work, guarantee clean-ups etc – to minimise the disruption for them.
If they are just playing dog in a manger, get in touch with some of the other people who didn’t attend and ask them to give you (or the Strata Manager) the proxy for the next meeting. This may be a good idea anyway.
Send a simple and polite letter explaining that everyone has to go through this kind of thing sooner or later and it would help with the general smooth running of the scheme if they could participate in the next vote.
Try your hardest not to make this personal or political and, whatever you do, keep the strata manager on-side.
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Aaah barbecues ! They make my laundry smell of sausages!
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Ignoring the notice is exactly the right thing to do. If you get another one, ask who it was who complained as you would like to report a Peeping Tom to the Police. In the unikely even that the busybody behind this persuades your EC to push it to a CTTT hearing, it will be laughed out of the building – and feel free to tell your stickybeak neighbours I said so.
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