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I should know by now that every time I tell myself I shouldn’t make assumptions I’m about to find out exactly why that’s the case.
You could add another two zeroes to the case I was talking about but the principles are the same – people misusing the law to beat their neighbours into submission.
And good luck getting your story in the papers! It’s taken me ten years to get past the “nobody cares” attitude of news desks to strata … and even then it’s a struggle.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.
@Urban Spaceman said:
Of course, the CTTT’s decisions were absolutely sensible, fair and just in this case because they simply always are, aren’t they …Your sarcasm is a bit misplaced. You’ve been reading this website and contributing to it long enough to know that blind faith in the CTTT isn’t my view and never has been. I’m guessing you’re frustrated at valid complaints that went nowhere. It happens – it’s wrong but it’s not everyone’s experience.
I’m also guessing – although I shouldn’t – that you haven’t been subjected to the withering onslaught of well-funded lawyers who have access to unlimited resources and whose petulant paymasters want you to suffer just because they didn’t get their way and you, doing the right thing, were the cause of that.
Sleeplessness nights, wondering if you’re going to lose your home, asking yourself if it would be easier to turn up if court and lie, saying you did do all the terrible things you’ve been accused of, just so they call off the dogs and you can get what’s left of your life back. That’s the flip side of this coin.
The CTTT isn’t always wrong (although they often are) and the campaigning owner isn’t always right, just because they won’t give up. We see plenty of tales of owners here in this forum who’ve grabbed the wrong end of the stick and won’t let go. Winning soon becomes more important than being right and if they have the time and money to make others’ lives a misery, then they will do so.
By the way, “the Executive Committee members have all done that new course which ensures they know the NSW Strata Titles Act back-to-front” is a good thing, right? But, yes, perhaps too many EC members are on their committee purely to protect their own interests – although that may be nothing more sinister than making sure the building is properly maintained and run in accordance with the laws and by-laws.
And some are do-nothing talking shops who resent any attempts from the outside to challenge their authority. But that’s life – people are different but what most of us want, really, is just a quiet life.
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QUESTION: Our building was on fire again today. The elderly owner concerned has caused fires in the building many times in the past few years.
The owner, who needs nursing home care, thinks that because he owns the unit, nothing can be done to force him to leave. Do we have to wait until the whole building burns down before we take some action? Does the EC have a duty of care? Mrs Maker, via Forum
ANSWER: As our population grows older and increasingly isolated it’s no surprise, I suppose, that I’m hearing increasing reports of residents who are not only a danger to themselves but, especially in strata, to those living around them.
This is really tricky area and one where most of us would love to be able to do something constructive but are reluctant to interfere with our neighbours’ lives. But if strata really is community – and when family structures are often non-existent – somebody has to step up, for everyone’s sake. And while the Executive Committee can help organise things, this is more of a community responsibility than a legal duty.
Once the neighbours’ fear for their lives has overcome their natural reticence, the questions arise, who do they call and what questions do they ask? I made a few inquiries on a hypothetical basis and the one reassuring message I got from the agencies who can help is that their first priority is to the individual who’s in trouble.
Assuming (as I know is the case in Mrs Maker’s block) neighbours want to help this person, they can try to get a community carer employed via Aged Care Australia. If there’s already an unofficial carer in place, they can get a lot of support and advice there too. The place to start is the Aged Care website which offers practical links to available services.
If the resident’s condition is a lot more serious, for instance if they have a decision-making disability that means they are partially or wholly incapable of looking after themselves, it may be necessary to have a legal guardian appointed.
By the way, only a professional can make that initial assessment but if that’s the best option, the guardian can then make decisions about how and where the neighbour lives. You’ll find more information about guardianships on the various websites for NSW, Queensland, Victoria, ACT, WA, Tasmania or South Australia.
If the resident has a diagnosed mental illness, a doctor familiar with their case or their principal carer can apply for a Community Treatment Order (CTO) which lets patients stay in their home provided they accept necessary treatment and management. If that’s not appropriate, they can also be admitted for residential care.
For more information have a look at the NSW Mental Health Review Tribunal’s website (or go online for advice in the ACT, Victoria, Queensland, South Australia, WA or Tasmania), then talk to their doctor or principal carer about the best options.
By the way, alcoholism is not considered a mental illness but in extreme cases where the person or their family or neighbours’ lives are at serious risk, police have an admittedly rarely used power to detain the person and apply for a court order requiring them to undertake residential rehabilitation.
The last three options are pretty extreme, but if you have an elderly neighbor who’s a potential danger to themselves or those living around them, and there’s no one looking after them, start with Aged Care Australia to see what the best next step might be.
People do slip through the support services net occasionally and if you do feel something needs to be done, there’s no need to feel guilty: whoever you call is going to have the best interests of your neighbor at heart. You can read the original posting in full by scrolling down to the bottom of this topic
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I take your point, Urban, and one man’s whistleblower is another man’s whinger, but in this particular case, it’s hardly a ‘do-nothing’ EC. They have been dragged through the court system many times by the same plaintiff (when surely it would have been easier to do something, if that’s the only complaint against them) and the litigant has consistently lost. In the scenario you describe, even if the vested interests had conspired against the Lone Wolf, surely somewhere along the line his howls would have been heard by one of the Tribunals he’s inflicted on his neighbours.
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This is one of the sticks I frequently use to beat the CTTT. According to their own website:
“The CTTT may order costs to be paid in certain circumstances, such as if the application is considered frivolous, vexatious, misconceived or lacking in substance, or the parties are legally represented.
View clause 20 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 for the full range of circumstances where costs may be awarded.
Yet, we know from experience that they almost never use this power. We can only hope that in the current review of strata law and practice, CTTT adjudicators are either encouraged to use this option or, when the CTTT is absorbed into the new “Super Tribunal” as is planned, they acquire a share of the collective backbone that has been so noticeably lacking when it comes to dealing with hobby litigants.
One thing that does occur to me is that you could think about collectively suing this irritating neighbour for damages for negatively affecting the values of your home and wasting Owners Corp time and money on spurious, vexatious and mischievous claims.
Now, I hasten to add that I don’t know if that would even fly as a legal action but I do know you can take strata cases to the Supreme Court on the basis that you are seeking damages and the CTTT can’t award them. I know it’s counter-intuitive when your complaint is about already having too many legal bills but the prospect of paying serious money might persuade your neighbour to take up another hobby.
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@KennyC said:
Thanks for the tip Jimmy.This may be a bit off the core subject but doesn’t the real estate agent selling the unit have a duty of disclosure regarding this to the buyer.
Even if there is a duty of dsiclosure, right no the Agent has nothing officially to doicsclose. Until such times as your EC or strta manager sends a Notice To Comply, there is nothing in writing to say that these alterations are anything but kosher. Perhaps as a preemptory move, someone in authority should send a letter to the owner’s solicitor informing them that the issue of illegal alterations will be raised at the next EC meeting and that in the meantime they should advise prospective buyers of this. You could also copy it to the RE agent.
When I sold an investment unit recently I had to sign a paper saying that I had not made any unauthorised changes to the unit. I don’t know if that is mandatory but it happened very late in the process (at settlement, I think).
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Your Executive Committee (or strata managers if they have delegated powers) very quickly need to issue a Notice To Comply citing relevant bylaws about changes to common property and unauthorised alterations and renovations.
My understanding is if unauthorised changes are made to common property and the unit is sold on, the Owners Corporation inherits responsibility for the common property as it was at the time the unit was sold.
The Owners Corp won’t be obliged to return the unit to its previous state but they will be responsible if, for instance, what could be very dodgy plumbing causes a problem. So you need to get a paper trail in place as quickly as possible so the owner has to accept responsibility for the unauthorised work before they sell the place and ride off into the sunset and the new owner passes the buck back to the Owners Corp.
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I seem to recall the last time we had this discussion the word from on high was that if, for instance, a common property water pipe leaked and damaged the paintwork inside a unit, the Owners Corp would pay for the repainting required after the work done to fix the pipe but the owner would have to pay for the repainting required because of the original leak.
Didn’t make sense then and it doesn’t make sense now. Except for this … I believe strata managers, lawyers and insurers all had considerable input into the Memorandum and they may have helped decide where the lines were drawn. For instance, if insurance companies said, ‘look, we’ll wear the costs of the internal stuff rather than it having to be an Owner’s Corp issue’ (which, collectively, they would have to have paid for anyway), it could have been a way of simplifying the process without the individual owner suffering unduly. It might also be a way of preventing opportunistic owners remodelling their apartment based on a tiny leak in their living room.
That may not be the interpretation under common law but then the Memorandum is not a legal document – it’s a guide. And it’s really no different from your car insurer paying out on minor damages caused by another driver rather than having the additional expense of pursuing them through the courts to prove that they were at fault.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.
Just found this in the famous Who’s Responsible Memorandum put together by the NSW Lands office and Fair Trading (and many others) to clarify disputes:
2.13 General – OC responsibility
h. TV aerial and associated wiring (servicing more than one lot and regardless of whether it is contained within any lot or common property).
What does this mean in this case? Firstly, the Owner’s Corp were duty bound to fix the problem. However, knowing you were going to demolish that wall, they should have alerted you to the fact that there were common property cables in it (if, in fact, they knew themselves). I’d be going to mediation with a view to sharing responsibility with them and splitting the cost accordingly.
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@pmo said:
Not correct sorry. If a water leak from OC pipe for example causes damage to your carpet then you have to claim on your insurance. OC does not pay and does not claim on their insurance. SeeI have heard so many versions of this and every time I think we have a definitive answer, something else pops up.
Here is one of the scenarios in the Fair Trading document quoted by PMO.
There is damp and mould in my unit.
The owners corporation is responsible for water penetration problems coming in through external walls or the floor. The owner is responsible for the mould on their walls.
That seems to suggest that the Owner’s Corp has to fix the problem that’s causing the damp but the owner has to fix the internal damage caused by the problem.
Then there’s the famous Who’s Responsible memorandum which says …
1.5 …major considerations have been:
a. all internal and external waterproofing is the responsibility of the Owners Corporation (including the function of any structure) except where a lot owner causes damage to waterproofing,Later it says …
2.12 Floor – Owners responsibility
c. Internal carpets and unfixed floating floors.And then we have
2.13 General – OC responsibility
b. Dampness in a unit coming from outside.And then …
2.17 Plumbing (includes bathroom, kitchen and laundry) – OC responsibility
a. Blocked floor drain or sewer in common property.
b. Burst pipe in common property.
c. Burst pipe outside the lot.
d. Damage to unit after water leak when OC effecting a repair.
i. Water leaking through tiles or from one lot and affecting another lot or common property.
Hmmm, clear as mud? A lot of that seems contradictory to me but there are three things you need to remember with regard to this document.
1. It has no legal standing unless is has been adopted as part of your by-laws.
2. Even so, if you find yourself at Fair Trading or the CTTT arguing a point not covered by your by-laws, the adjudicator will reach for the Memorandum as a guide.
3. There are principles of common law that mean if A’s actions or negligence costs B in some way, then A can theoretically be held accountable.
The question then arises, is it worth pursuing a claim for say, the excess on your insurance, or an increased insurance premium? The answer, more often than not will probably be ‘no’.
If your insurance is happy to pay for the carpet and it doesn’t affect your premiums, go with the flow. But if it’s going to cost you substantially, I’d be looking for compensation from the Owners Corp becasue of their negligence.
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@pmo said:
Based on my research electronic meters (such as one of those I mentioned) work by sensing a magnetic pulse every time the internal impeller rotates. Assuming that they do actually sense the pulse then they will be as accurate as a mechanical meter.True, but they are also a lot more expensive than the old-fashioned analogue in-line meter that measures the actual physical flow of water — $120-150 for the latter compared to $990+ for the electronic ones, according to this website. AND you have the cost and hassle of installation.
Clamp-on meters are a lot easier to install but they cost about $4500 which would pretty much rule them out except for the purposes of, say, testing water flows to different buildings in the one complex.
And don’t forget that for some buildings you’d be measuring both hot and cold water flow since many have a shared water heating system. The cost may be prohibitive.
That just leaves the radio transmission of the stored data, which these days is virtually foolproof, with various types of error detection and correction.
The Sydney Water spokesman I heard speak was less convinced about the reliability of these meters but the technology is improving all the time so that shouldn’t be an issue.
Note that installation of the meters need not be optional. The incoming water pipe and tap is common property. The OC is completely within its rights to mandate the installation of such a meter by way of a Special Resolution, under Sect. 65A of the Act.
Obviously, if the vast majority of owners (75% of those voting on the necessary by-laws) are in favour of fixing individual meters then opting in or out isn’t an issue. But when you look at the numbers for whom there is no clear benefit from this expenditure – eg, landlords, large families and heavy water users generally – it might be tough to get such a radical change approved. I could be wrong but you might be able to persuade enough people to allow modest amounts to be spent – and the by-laws to be amended accordingly – to permit an opt-in scheme. But imposing the shared cost of installation PLUS the prospect of realistic charges for their share of water might be too big a leap for the water wasters to take.
The only possible problem would be that an owner could remove the meter and install a tap for part of the year. In the case of radio meters it would be easy to detect via regular checks, which would reveal that the reading had not changed over a period of time. They may also have built-in tamper detection.
Agreed. That’s why accessible external meters should be included at the planning stage – and local councils, if they are serious about this, should be insisting on it as part of DAs. I am told on good authority that one Sydney apartment block developer recently put up a proposal to have one water meter, one gas meter and one electricity meter for the whole building, to save the expense of individual meters for each apartment.
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Yes, you can retro-fit but then you have to decide who’s going to read them. If you want every apartment to have a meter and then have it read by the water supplier, it’s going to possibly create some access issues. If you want to have the meters installed on a voluntary basis with those who opt in charged for actual water use by the Owners Corp and those who opt out charged on a pro rata basis, then access isn’t so much of an issue as anyone who has ameter would be happy to let it be read.
By the way I heard someone from Sydney Water tell a conference last year that the wireless meter readers aren’t yet 100 percent reliable.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.
@pmo said:An OC cannot legally prevent an owner from leasing their lot or lots to more than one person and any By-law that attempts to do so is invalid by virtue of Sect. 49 of the Act, as has been pointed out.
This is good news for our original poster who was told she couldn’t rent her car space to non-residents.
But for those owners who want to prevent this happening for security reasons, is there another way around this?
How would it be if you made the by-law not about renting space but the issuing of access keys? Is there anything to stop an Owners Corp deciding only to issue electronic access keys to residents, and giving them the power to cancel keys through, say, an annual audit?
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Was this ‘by the book’? if only there was a book to go by. First of all, it’s not unusual from someone who wants a special resolution by-law like this to pay for both the by-law and the meeting. You are, after all, the only person benefitiing from this process.
Secondly, you have tripped over one of the great truisms of politics – never ask a question to which you don’t know the answer.
It’s a shame you hadn’t come on to this forum before you launched this effort as I’m sure the one resounding message all of our regulars would have given you was “make sure you have the numbers”.
There are two things you can do before you go round again with this (as you should). Make direct contact with as many other owners as you can and ask them to support your application. Now that you know there is one person against this, you know you need three other votes to get past the 75 percent vote (assuming the one ‘no’ vote is the only one).
Many people won’t vote in favour of something even if they don’t object to it, just because they see no reason to do so. The best reason you can give them is that some day they might want community support and the best way to ensure that is to do the right thing for your neighbours when the opportunity arises.
The next thing I would do is to ask the Strata Manager to organise an EGM by proxy, if possible, so that the expense is kept to a minimum. Even if you can’t do that, you need to get a hold of half a dozen of the official proxy forms and do some serious door-knocking both to explain your plans and to get people on-side.
As far as the actual expense of holding the EGM goes, I have no idea if that’s too much, too little or right on the money. Maybe some of our strata manager readers can give us an opinion. It could be, though, that your strata manager has a standard fee written into their contract. It’s just a shame nobody explained this to you first.
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