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Our good friends at Strataman.com.au (which is great if you want the letter of the law without the nuances and side issues we get into) say this about fire safety issues.
The NSW Environmental Planning & Assessment Regulation 2000 requires that “the owner of a building, to which an essential fire safety measure is applicable, is required to maintain each essential fire safety measure in the building”. Failure to comply with this legislation can lead to significant fines and possibly serious legal ramifications for those responsible.
Fire Safety measures include smoke detectors and alarms, fire dampers, doors and automatic sprinkler systems.
Moving on to the strata Act, it says this:
65C What are the duties of an owners corporation in relation to fire safety inspections
(1) A person authorised to carry out an inspection under the Environmental Planning and Assessment Act 1979 of a building or premises for purposes relating to fire safety may give a notice in writing to an owners corporation for a strata scheme requiring the owners corporation to ensure that access is provided, within a period or at a time specified in the notice, to the common property of the strata scheme and, if so specified, some or all of the individual lots in the strata scheme.
(2) An owners corporation must comply with a requirement of a notice given to the owners corporation under this section.
Maximum penalty: 20 penalty units.
(3) It is a defence to a prosecution for an offence against subsection (2) consisting of a failure to ensure that access is provided to a lot in a strata scheme if the owners corporation establishes that the owner or occupier of the lot refused to allow the access or could not be contacted by the owners corporation.
(4) For the purposes of the Environmental Planning and Assessment Act 1979, access to a building or premises or part of a building or premises given to a person in accordance with this section, or in accordance with an order of an Adjudicator made under section 145 for the purposes of this section, is taken to be a permission given to that person by the occupier of the building, premises or part to enter the premises and carry out the inspection concerned.
If you refuse access, they can get a CTTT order forcing you to do do and then will probably charge you for a personal call-out fee to the fire inspector – which won’t be cheap.
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I wonder if you have already allowed this commercial tenant to get away with too much. Yet again I find myself recommending you consult a specialist strata lawyer. I don’t know if their “medical precinct” leeway will stretch to a predominantly residential building. Either way, I think you need to sit down now and discuss all the breaches you think they have committed and then at the very least have them ready for your hearing (although it may not mean much if you haven’t presented them with the complaints)
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This seems a bit heavy-handed. Surely the owner has to agree to vacate (while allowing access for the work). I think this owner needs to talk to a strata lawyer ASAP while possibly informing the OC that legal fees could be a part of the final claim.
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Don’t forget that the walls, ceiling and floor of your unit ARE common property. I don’t know what Act covers the fire inspections but I do know they are compulsory.
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There’s nothing to stop the EC Chair doing this and, if he is explaining why he needs the proxies, there’s no reason to object. Even if he was asking for the proxies without saying why, it’s still legal. But bear in mind that proxies can be rescinded by the simple act of signing a subsequent proxy for someone else which cancels out the previous one,
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That would be ‘bustards‘ rather than buzzards, right?
But seriously, you could adopt a set of standing orders for meetings. In fact, I reckon we should have our own pro forma standing orders posted here so Flat Chat readers can adapt and adopt them. Any thoughts?
While you are all cogitating on that, how about a quiet word with the strata manager about shutting this person up by a) asking her to show some respect for other attendees when she interrupts; b) telling her she will be asked to leave the meeting if she persists; c) adjourning the meeting until she gives an undertaking to keep quiet (as an absentee owner, she won’t like the idea of having to come back again in two weeks or sit waiting for the meeting to resume).
I have heard some pretty outrageous methods of shutting up disruptive attendees at meetings. One building in Sydney used to have a large and muscly gym junkie owner who’d fly into ‘roid rage at the slightest provocation. Their only way of controlling him was to ask an even bigger bodybuilder tenant who went to the same gym. The tenant had no right to be at the meeting but a word from him would calm the nutter owner down. Dontcha just love strata!
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Hmmm. Seems to me that as soon as someone tells them that they have an OH&S issue and they don’t do anything about it, their insurance evaporates. It depends on the credibility of the notifier, of course. But there is a principle of culpable negligence which is also reflected in the new Work, Health Safety legislation that quite simply punishes a ‘do nothing’ approach.
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If you want the memorandum to apply directly to your Strata plan, you need to adopt it under a special resolution.
However even if you don’t do that and someone challenges an EC decision that has been made based on the Memorandum, they are going to find it hard going with any SCA (formerly ISTM) strata manager, as well as at Fair Trading and the CTTT, because these bodies were all party to the formulation of the Memorandum and at the very least will use it for their own guidance.
That said, the document is not absolutely definitive even if you do adopt it because a) it’s not part of strata law and b) by-laws are inferior to other laws. So if, for instance, the Memorandum says the OC isn’t liable for damage cause by the failure of OC property but common law says it is, you might have a Memorandum-based decision overturned in a court of law. The question remains, wouldn’t it be easier and cheaper to just accept the principles in the Memo and insure your property appropriately?
There is a lot of common sense and clear thinking in the Memorandum and I would urge OCs to adopt it pretty much wholesale. But it’s not strata law so there will inevitably be disputes.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.
Apart from the 33 percent against measure, there seems to be a subtle but significant difference between present and allowed to vote (including by proxy) and, in NSW, actually voting. I’m pretty sure that if anyone in NSW ticked the ‘abstain’ box, that vote would not be counted in the calculation of the required percentage. That obviously makes it easier to get the 25% ‘no’ vote up, rather than the ACT’s 33%, so maybe it all evens out in the end.
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The calculation is on the number of owners actually voting (or their unit entitlements if a poll is called). A non-vote is exactly that. It’s not a yes vote and, in fact, usually helps the “no” side because it makes it easier to reach the 25 percent of a reduced figure. And before we get into it, an abstention is not a vote – it’s a declaration that you aren’t voting, so it can’t be counted in the overall percentages.
And just to clarify the final point, the calculation is based on those actually voting (or their unit entitlements). This is what the Fair Trading website says: “A special resolution is passed if at least three-quarters of the votes cast support it.” That’s ‘votes cast’ not voters present or owners.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.
I’d put money of the chances that your neighbour is partly parking on common property and I’d double my bet that you have a by-law that says that’s not allowed.
So I’d be asking him politely if there’s anythng he can do to make access easier for you. If he isn’t interested, you can ask the EC or strata manager to issue a Notice To Comply with the by-laws regarding parking on CP.
Your strata plan drawings should show the boundary between private property and common property as a thick black line, just so you are clear you are on solid ground with this. However, if both garages are common property (as they may well be) then there are a whole lot of other issues about appropriate use that may come into play.
By the way, would it make a difference if you swapped sides? That could save everyone a lot of grief.
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The minutes of the owners corporation and executive committee will tell you most of what you need to know, along with the original strata management statement. There are firms that specialise in strata searches but you probably need to tell them how much detail you need.
In simple terms, they will tell you what problems there are now and have been in the past. But they will have to dig deeper to find issues that may arise in the future (like the FlatChatter who wasn’t told that the apartment she bought for herself and her cat was about to be in a pet-free building). The vendor of a unit usually provides the permission for strat searches – it’s harder when you want to do a search before there’s actually an apartment for sale.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.
That case backs up what we say elsewhere – Fair Trading might not support a claim for damage caused by failed common property but common law and this legal precedent clearly does. Thanks!
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@nettle said:
@JimmyT said:
In short, your neighbour can’t make a noise that disrupts the peaceful enjoyment of a lot (if you have that by-law) at any time, night or day. That’s why there’s no time stipulated – it apples 24/7.I’ve seen this advice given here often, and it seems remarkably unhelpful. It is totally unrealistic that strata occupants can NEVER make noise in their apartments if there is a valid reason (eg. renovations). If it makes no difference when the work occurs as you are indicating, does that mean the OP should also complain even if the work was occurring at 2pm on a workday? Where do we make allowances for give and take and acceptance of short term inconveniences, and the realities of modern day living?
If you could just get off your high horse for a minute, who said you could NEVER make any noise EVER? Who said there would be no give and take? Who said you’d be pulled up for making any noise at 2pm?
You can find reams of material on this Forum about reaching compromises with your neighbours. But buildings have to have these basic rules to suit their circumstances before they reach compromises otherwise people would just do what they wanted.
The problem is when you get some numpty moving into a building and bleating about their “rights” to have their hobby renovations going on all evening and all weekend when everyone else is trying to relax. Apartments are not houses. If you want the same freedoms as you have in a house, the answer is simple – go and live in one. You can’t import quarter-acre values to apartments. It’s like buying a car and complaining it doesn’t float as well as a boat.
Often these DIY renos go on forever because the renovator either doesn’t have the money or doesn’t know what they are doing or both, which means that many of them are far from a “short-term inconvenience”.
You’re right about give and take – only for some people it means everyone else gives and they take. My building is far from perfect but if you want to do renovations you have to have a proper schedule and that includes limited periods during which noisy work must be done – negotiated with the building manager and notified to other owners – and if you can’t get it done in that time, that’s your problem. You’d be amazed how many tradesmen can suddenly fit all their hammer drilling (for instance) into a short period when they’re told the alternative is that they won’t get the contract.
Of course there will be noise and dust during the day, but you can’t expect to improve the value of your home at everyone else’s expense simply because you’d rather not pay for professionals to do the job quickly and efficiently.
DIY renovations may occasionally be a valid reason for breaking noise rules – but when they impact on too many people too often and for too long, they are simply selfish and self-indulgent.
Hope that was sufficiently helpful.
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You might point out that that if the emails are intended for public consumption, they could be considered defamatory and if they are only personal, they are harrassment and, technically, assault.
This person needs to turn down their anger level and/or tone down their language or you will refuse to even read their emails so there will be no point in them even sending them.
Tell them you have now accumulated enough evidence in emails from them to make it worth taking action.
Or you could do what this FlatChatter did HERE and let everyone know exactly what is being said.
Best of luck with what is a nasty situation
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