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Ambush marketting – wait until the property is all done up and the developers have advertised their apartments for sale then stand there with information for your apartment when potential purchasers come to see theirs.
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I’m guessing that where you say “model by-laws” you mean your own – the model by-laws have no standing unless they have been adopted by your strata plan.
The written permission issue is tricky – can you actually officially permit owners to park in visitor parking? Isn’t it then no longer visitor parking?
Permission for residents to park in visitors parking would be contrary to your own strata plan and by-laws and possibly the terms under which the DA for your complex was agreed. The written permission issue is relevant to, say, residents who want guests to stay longer than the normal permitted period for parking in visitors’ parking.
Most buildings allow a little leeway for residents to stop in visitors parking for a few minutes while they drop off shopping or whatever, but I’m pretty sure you can’t formally allow residents to park in visitors parking just because it suits them to do so. Any agreement by the EC to allow this would therefore be incompetent.
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Which state are you in and where can we access the contracts to which you refer?
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Just a couple of quick points on PeterC’s reply, the four owners out of six may have the requisite votes to change common property via a by-law if they have the Unit Entitlements (e.g. if their properties are larger).
However, I’m not sure the developer even needs anything more than a simple majority at a General Meeting to undertake works that can be classified as repair and maintenance.
This particular rort, is a pattern that’s being repeated all over Sydney (and probably Australia) where developers buy up the majority of units in a small block, embark on big ticket spending and then, lo and behold, are able to buy out the minority owners who can’t afford the special levy, often at a bargain price because no one wants to buy an apartment that has a special levy about to be imposed.
Even if they aren’t looking to own the whole building so they can, for instance, redevelop, it’s a good way of getting their hands on the accumulated fund of the owners corp from which they will benefit most.
My tactic right now would be to apply to the CTTT for the statutory appointment of a strata manager to take over the running of the building from the Owners Corp, on the grounds that it’s being managed to the serious detriment of a substantial minority.
PeterC’s reference to a fraud against the minority may be correct, but only if the individual owners weren’t getting anything in return – in this case, they are benefitting from improvements to common property.
I think the son’s options are threefold – fight this in the CTTT (outcome unpredictable), go to the developers and offer to sell or get a short term loan and wait out the improvements, selling his apartment for a profit (some ambush marketting by latching on to the developers’ open days would be an appropriate revenge).
Even if he can’t get a loan, the penalty interest on unpaid levies is only 10 percent, he could make that back and more on the improved value of the apartment.
But first, I’d be talking to the CTTT and at least asking for a mediation or, even better, an emergency ruling to stop all work until the case for a statory strata manager can be heard. Meantime I’d be having a long chat with a specialist strata lawyer. There’s an ad on the Home Page – no harm in clicking.
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It’s good to have a dog that hasn’t been a problem but there are bigger issues to consider before you buy a new home for the both of you.
When you find an apartment that you like, ask the estate agent if there will be any problem with owning a dog. If they say yes, look elsewhere. But even if they say no, check the building’s by-laws. The current standard or model pet by-law says you need written permission for a pet but the Owners Corp can’t unreasonably refuse permission.
However, the building you are looking at may have been established before that came in and, in any case, every strata plan has the option to change its by-laws and they may have changed theirs to ban pets altogether. If that’s the case, again, look somewhere else.
If they do have the “not unreasonably refuse” by-law then you need to check if they have ever actually allowed pets before. If they have, then you should get references from your neighbours and your rental agents to prove your dog is not going to be a problem. If they haven’t, you need to find out if this is because they have actively refused or if they just haven’t had anyone ask the question.
The other possibility is that they have a by-law that allows pets under certain conditions. You need to know what those conditions are and if your pooch fulfills them.
This sounds like a hassle but it’s not rocket surgery. All you need to know will be contained in the by-laws and the minutes of the EC which should be scrutinised when you get your searches done on a place you like.
If you get to the point of making an offer, insist that the solicitor handling the purchase checks that there will be no impediment to having a well-behaved dog in the apartment. We have had a case in this website of a purchaser whose solicitor neglected to tell her that even though the the building had the “not unreasonably refuse” by-law, they were planning to bring in a pet ban, which happened between exchange of contracts and settlement.
So demand all possible checks but once you get that OK, you are fairly safe to go ahead.
What you definitely don’t do is go into a building that has a history of banning pets and think that by some legalistic jiggery-pokery, you will be able to get your little pal into the building. This is a recipe for heartache for you and little Fido (not to mention the people who have decided they don’t want pets as neighbours).
There are plenty of apartment blocks around that welcome dogs – don’t buy into a place that hates them
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@iMacka said:I currently live in a unit that is located above shops which was fine until a new shop opened underneath me.
The air conditioning unit for the shop is on top of my roof. The air conditioning unit is old and has now started a very audible, very annoying vibrating noise. The new tenants run their air conditioning constantly its on from 9am till 9:30pm.
I wrote to my strata company and complained and they sent a serviceman out who “insulated” it to the best of his ability and advised me he was going to recommend they get a new unit as the existing one was very old. Eventually strata came back to me and said the quote was $6,000+ and therefore not approved.
What more can i do? I cant stand the noise its driving me mad!! Any advice would be greatly appreciated!
First, look at your by-laws. If there is a clause there (and there probably will be) that residents aren’t allowed to interfere with the peaceful enjoyment of another’s lot, then you have a case to take to Fair Trading and the CTTT to force the Owners Corp (or whoever actually owns the air-con unit) to fix the problem.
Another good idea is to contact your local council – it’s their job to regulate noise nuisance. First, have a look at THIS website, then THIS one, to see the grounds on which you might complain. By the way, don’t get confused between the regulations about the hours in which no noise should be heard and the levels of noise that constitue a nuisance. These are two separate issues. The former is about the times when you have to turn down your stereo or not use power tools – the latter is about ongoing noise nuisance at any time of day. Certainly, the Environmental Protection Agency website states the following:
What is offensive noise?
The definition of offensive noise in the POEO Act is noise:
(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances:
(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or
(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or
(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.
On the face of it, I’d say under clause (a)(ii), you have a very strong case to ask council to step in and order the air-con owner to fix the problem.
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OK, reading as much material as I can, I think the EC meeting was invalid and, logically, the decisions made at it probably were too – but I don’t think that means much more than you have a bunch of incompetents running your building. If they had any sense they would quickly call another meeting to ratify the decisions they made, if there were any possible repercussions.
By the way, I hope one of our professional members puts me right if I have got this wrong.
I’ve outlined my reasoning below but in purely pragmatic terms, there are enough safeguards under the Act for owners to call an EC to account if they have made bad decisions in meetings that were unconstitutional. I suspect the most you would ever get from Fair Trading and the CTTT would be a ‘there … there …” and a pat on the head.
There are three things that occur to me. The first is that the Adjudicator can declare decisions made at a meeting of an owners corporation invalid if the meeting hasn’t been conducted under the terms of the Act (see 153 below). But is an EC meeting a meeting of the owners corporation? It may be significant that in the preceding and succeeding items in the Act it refers to ‘general meetings’, but only ‘meetings’ in 153.
So is an EC meeting a meeting of the owners corporation, as defined by the Act? I would think not but section 21 (also below) says that decisions made by the EC are to be taken as decisions made by the Owners Corp unless the owners supersede those decisions at a general meeting.
And there is another thread running through these clauses about the validity of meetings – the Adjudicator can reject an application that a vote at a general meeting was invalid – n the application being on the grounds that owners were denied the chance to vote on it – if their vote wouldn’t have affected the outcome.
In other words, even if you rightly claimed that you weren’t given proper notice, it would only be if your vote would have changed the outcome can you ask for the decision to be invalidated. However, this reference in the Act is only in relation to General meetings. See section 154 below.
Finally, the Act is quite specific in terms of the circumstances in which decisions made in good faith, but where the EC wasn’t legally constituted, can still stand (Section 17) below.
That would suggest to me that decisions made at an EC meeting that wasn’t properly notified may not be valid – but it’s an easy fix – the EC just has another meeting (possibly electronically) and takes another vote to validate all its decisions.
153 Order invalidating resolution of owners corporation
(1) An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.
(2) An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:
(a) that the failure to comply with the provisions of this Act did not adversely affect any person, and
(b) that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.
21Executive committee’s decisions to be decisions of owners corporation
(1) A decision of an executive committee is taken to be the decision of the owners corporation, subject to subsection (4).
(2) However, the following decisions may not be made by the executive committee:
(a) a decision that is required by or under any Act to be made by the owners corporation by unanimous resolution or special resolution or in general meeting,
(b) a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting.
(3) An owners corporation may in general meeting continue to exercise all or any of the functions conferred on it by this Act or the by-laws even though an executive committee holds office.
(4) Despite any other provision of this Act, in the event of a disagreement between the owners corporation and the executive committee, the decision of the owners corporation prevails.
154 Order where voting rights denied or due notice of item of business not given
(1) An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:
(a) was improperly denied a vote on the motion for the resolution, or
(b) was not given due notice of the item of business in relation to which the resolution was passed.
(2) An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.
17 Acts and proceedings of executive committee valid despite certain circumstances
Any act or proceeding of an executive committee done in good faith is, even though at the time when the act or proceeding was done, taken or commenced there was:
(a) a vacancy in the office of a member of the executive committee, or
(b) any defect in the appointment, or any disqualification of a member of the executive committee,
as valid as if the vacancy, defect or disqualification did not exist and the executive committee were fully and properly constituted.
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@struggler said:
Just rang and spoke to fair trading. They said that attendance is compulsory at mediation!It is … in theory. But the penalties for non-attendance are …? A fine? Nope. You automatically lose the case? Not even that.
[Having just read the posting by Scotlandx (above) I am happy to admit I was wrong – mediation is compulsory but attendance isn’t. Not that it makes much difference to the price of milk, but I’d rather get my confessions in early – JT]
I know cases where the plaintiff has sent his lawyer to mediation to sit and repeat the words “My client has given me no instructions on areas in which to compromise”. Is that attendance? technically yes, but not in any real sense.
However, I do think it shows that you have acted in good faith if you turn up at the meeting and show willing to compromise. And it doesn’t look too good if you have driven the case and you don’t turn up yourself (in which case I think the Member would probably dismiss the action).
By the way, nothing said at the mediation is permissible as evidence at the adjudication, if it goes to one. Mediation is a great idea and it can work but it falls down when one or other parties refuse to play the game.
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Weird! I wrote a reply to the previous posting and it disappeared into the ether.
OK, here goes again.
Mediation is an obligatory part of the Fair Trading/CTTT process and everyone has to go through it apart from in a handful of circumstances, of which this is not one. It’s the law and you don’t get past square one without it.
Even though mediation is mandatory, attendance at it is not, neither do participants actually have to say anything. Why that should be the case is a mystery but that’s how they roll.
If your EC or strata manager does turn up and does promise to do stuff, tell them you want specific measures, with a timetable of work in writing as a binding agreement – not some verbal or vague flim-flam they can retreat from later. Anything short of that, you don’t accept.
The initial adjudication after the mediation is done on paper – you don’t get to speak to your case and neither does the other side – and this is where your evidence comes in.
Every scrap of every document you can produce is worth taking, but remember that the Adjudicator will be more interested in what the building needs – repair and maintenance are covered by the Act – rather than claims of broken promises which are just politics.
So you need to show that a) there is work that needs to be done; b) the property is being damaged by the work not being done; c) the owners have been told it would be done; d) the building has the money to do it.
If you can supply expert assessments that the work is necessary, so much the better.
What you want is a timetable that covers issuing and acceptance of tenders and when the work will be started and you should probably state this in your initial application.
A vague request to the CTTT to tell the EC to do their job isn’t going to get you anywhere. A request for a binding work schedule is something that the adjudicator will (hopefully) see as reasonable and practicable.
If there are other owners unhappy about what’s going on, ask them to chip in to help pay the $76 application fee (and it’s a one-off fee to start the whole process – it’s not specifically for a mediation).
However, I wonder if you went to the EC and asked them up front to deliver the timetable as described above, if they wouldn’t prefer to do that than have the time and considerable expense of being dragged to the CTTT.
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Hey Byron, your original title was “Common Property Dilemma” – hardly stands out from the crowd if you want an instant answer in a thread about Common Property.
There’s not much you can do to force the upstairs owner to accede to your plan unless you have more than 75 percent of the Unit Entitlements (and I’m guessing they’ll be more like 50-50).
Talking is always the best way and in your case you need to bring enough sweeteners to the table to make the upstairs neighbour WANT to do what you want, rather than just allow it.
Find out what would make this an attractive proposition for her then add a bit more. Once you’ve got agreement, it’s just a case of getting it all in writing so everyone can agree and sign off on it.
But make this a positive move, rather than a challenge to her rights, and that will go a long way to you getting what you want.
You could go to Fair Trading with a case about how the upstairs use of common property diminishes your value, with claims about noise and inappropriate behaviour or whatever – if you want to turn your home into a war zone for the next few years.
Talk and, even more important, listen, and you might just get what you want.
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That’s exactly what it needs as it will be installed on common property. Also, the resident installing the system should pay for the cost of having the by-law written and,if there has to be a special meeting convened to approve it, the should pay any costs for that too.
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I’m guessing, given your legal expenses etc, that you have squeezed other spending as far as you can without damaging the value of the property.
So put together a spreadsheet of all her complaints and how much it will cost to fix them, then add in all the existing costs of running the building and show her how much more in levies she will be paying if you accede to her demands.
Ask her which of the existing services she wants to remove in order to reduce her levies.
I’ll bet my bottom dollar the first thing she’ll pick on is the Strata Management fees. Many owners think that all the money paid to the SM goes straight into their pockets. In fact, most of it goes to pay bills that they take care of on your behalf. I wonder if any of it is set against annoying phone calls from ill-informed owners.
There is one other issue – when you buy a property, the levies are right there on the ad and in the literature handed out. If she didn’t want to pay the levies, she should have found somewhere cheaper.
Getting her on the EC may be a good idea – unless she is just one of these people who isn’t happy unless they have something to complain about.
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This is a tricky because, as a tenant, you are one step removed from being able to do anything – but that doesn’t mean you should do nothing.
Firstly, it sounds like this building was built badly to begin with but a lot of your problems could be related to simple noise insulation issues. If the pipes aren’t properly insulated then you are going to hear noise right through the building. The same applies to sound insulation between floors and walls. How easy that is to fix is impossible to tell until the building is properly inspected.
If I were an owner in this building I would be pressuring the Owners Corporation to do something about the noise insulation on the grounds that strata living has changed since this building was put up and people have higher expectations of the livability of places they buy and rent. In 1963 there were no surround sound TVs and people didn’t have their stereos blasting when they were taking power showers. For a lot of people this was the first time they’d had an inside toilet. Improving the sound insulation of the whole block would pay back immediately in the value of the properties.
Back to you as a tenant – you can ask the owner to initiate the discussion with the EC or you could even ask them just to treat your apartment for better insulation. There are a couple of special sound-absorbing wall and ceiling panels on the market that are remarkably effective (and not too expensive to install). Again, beter insulation will increase the value of the apartment.
But, as far as forcing them to do anything, unless the rental advertisement said the apartment was quiet, I don’t think Fair Trading will either force the landlord to do anything or even support a claim for a reduction in rent. You could try but I think you might have more chance of success by keeping the owner onside.
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The word “duty” only appears in the Act in relation to the Strata Manager. However, the Owners Corp has an absolute responsibility to maintain and repair common property that supersedes just about anything else that’s going on. For instance, you could be locked in a court battle with a developer over defects but still have to go ahead and effect the necessary repairs if an owner demanded it. And having no money is no excuse either – if repairs have to be done, you have to find it.
There is some excellent advice lower down this thread, from Strata managers and lawyers. The first thing I would do is to insist that the EC gets a licensed building consultant (like our sponsoprs IBC) to have a look at the work and see if it is up to scratch.
If it isn’t, you could be struggling to avoid paying a double whammy on work that’s been done badly. If the builder won’t refund the money you could threaten to report them to Fair Trading where the fines for doing unlicensed building work are hefty (see Chris Kerin’s post below).
You MIGHT be able to take a Supreme Court action against the individual EC members who ignored advice about unlicensed builders, forcing them to pay out of their own pockets.
I hasten to add, I don’t even know if that’s possible – but I do know you can take a strata case to the Supreme Court on the grounds that you are seeking damages and the CTTT doesn’t award them. Even then, this is an expensive and divisive option that could cost more than you gain.
Working back from that, perhaps the first step (after you have consulted a specialist strata lawyer, of course) is to tell the errant members of the EC that if they don’t arrange for the work to be fixed immediately at no cost, that is what you will do.
Regardless of anything else, I would also be writing to every owner – whether they live in the building or not – explaining what has been done with their money, how they face double bills for repairs and how cavalierly your EC has been operating. Just be careful not to name names or go over the top with your criticism or you could be the one who’s dragged into court.
The Strata Manager should be sacked if he or she knowingly allowed the use of unlicensed tradespeople. The EC should be asked to resign for allowing it to happen or misspending your money. And have a look at their claims of ‘immunity’ – it might sharpen their thinking if it turns out the insurance company iwon’t be coming to their rescue any time soon.
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EC members have a certain but limited amount of legal ‘privilege’ when it comes to comment and they may be protected from being held personally accountable for their decisions by EC insurance – but only up to a point. It depends on the insurance policy but I think you will find that coverage often evaporates when they have knowingly and deliberately broken the by-laws (or any other laws, for that matter). EC insurance is generally there ito protect EC members who have been party to decisions made in good faith. I would check with your insurance providers what happens when they have been given valid warnings that they are doing the wrong thing and have chosen to ignore them.
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