[Jimmy-T]

A very lively discussion on this is taking place in the Online Herald HERE.  It seems this is not an isolated problem … and some of the solutions are pretty smart and inventive.

At the risk of being accused double-dipping, here’s a selection of online responses but readers are still having their say so have a look at the above link if you want to read more.

FROM THE ONLINE HERALD”S PROPERTY PAGES

Technically, you should be told if the landlord will be accessing your flat for any reason (including repeairs requested by you) and should be given the opportunity of being there. If you see a lot of the landlord (and it sounds like you do) I’d suggest a bit of diplomacy; tell him that you’re very safety conscious as a woman living alone and you’re worried about unexpectedly finding someone in the flat because you might get really scared and unnecessarily bother the police, your neighbours, or your boyfriend who just left the army to pursue a full time career as a fitness model. Then go ahead and change the damn locks. If this guy really creeps you out (and if things get worse after this conversation, you probably do have a reason to be worried) then start looking for a new place. The Residential Tenancies Act has a lot to say about access, but your landlord probably has the paperwork to convince any locksmith he employs to let him in. – DisDis

 

Can I suggest you install a hidden camera in your place?  These days you can get hidden cameras that are relatively inexpensive. You put a SD card in them so no messy tapes. Some even have a motion sensor on them so they only turn on where there’s somebody there saving you battery and memory space. They can range from $30 – $150 dollars.

By the sounds of things you’re renting directly from a landlord vs a real estate agent so you might not even be on a formal lease agreement. Plus the camera option would be a much cheaper alternative to getting a locksmith to change your locks and you’re not breaking anything in your lease contract.

At best, you look over the video footage and realise nothing is happening and that you were a bit paranoid (which is ok) Your fears are put to rest and you can get some peace of mind while not breaking any agreements or damaging relationships with your landlord.

At worst, well let’s not think too much about that but you would then at least have video footage and can submit it to the police as proof so it’s not just your word against the landlord. Good luck and I hope it’s nothing. – Sydney

 

There is no way he is allowed in your unit without you there. He needs to give you the required notice to let you know he will be coming to make repairs, and you must agree on a time, he can’t just say he’s coming and then turn up. If this happens again, make sure he knows you are not happy about this and request that he follows the proper procedure in future. I would put in a sliding latch for when you are at home, if you don’t want to change the locks. Then you just have to remove it when you leave. – BH, Sydney

 

Be prepared to act totally amazed when you rent suddenly rises after doing this. –architect_of_Reality

 

That’s appalling that the landlord just helped himself without you knowing, One doesn’t need to know anything about tenancy laws to know that it is wrong.

If the rental market wasn’t so tight, I’d advise you to leave and see what action can be taken against him. Or just leave anyway despite the market. – a good landlord

 

This, many other examples of landlords’ attitude to and treatment of their tenants, and the cost of housing (both buying and renting) convinces me that it should be illegal for individuals to own residential property that they don’t live in themselves.

The laws, and especially societal norms, are slanted so far in landlords’ favour it’s not funny. Renters are genuine second class citizens in this country, thanks to the insane property ownership fetish we have here.

The majority of landlords believe that because they own the property they can apply conditions, and treat the renters, at whim. Fair enough — if they are allowing tenants to live in the property for free. But the reality is that renting is a commercial transaction which temporarily transfers ownership and responsibility to the tenant. Landlords butt out! – TheMagnum, Sydney

 

Go ahead and change the lock! The only way he will notice it is when he tries to enter the place while you are not there, which is a tangible proof against him.

If he asks you: why did you change the lock? You answer him: why did you try to enter place without my permission? – your right, against slumlords

 

The problem with construing this as a “breach of the lease,” is that a breach only give the leaseholder the right to terminate the agreement, which presumably is not the desired remedy.

Putting aside for a moment the effect of legislation, which varies from state to state, what it is, is trespass. Trespass protects an occupant, not an owner qua owner. Lease conditions, allowing a limited number of inspections with due notice, constitute a consent by the leaseholder for the owner to enter subject to those conditions.

Apart from that, or the actual consent of the leaseholder, the owner may enter the premises only subject to any statutory rights they may have. In NSW the statutory grounds for entry are spelled out in s55 of the Residential Tenancies Act 2010. Note also the criminal provision in s50(2).

You may NOT rely on this as advice (but it might help get you started in dealing with your problem.) – James K, Sydney

 

The residential tenancy act requires that the landlord give notice before commencing any repairs unless it’s an emergency repair ( what constitutes that is listed in the act, but includes leaking toilet etc). Otherwise, set up a webcam (fairly easy, just ask one of your nerdy friends) and go to the tribunal with the evidence.

Or if you want to teach him a lesson, set up the webcam with remote view – and call the police if you see him 🙂 le-foot, Maroubra

 

I have heard of tenants putting hidden cameras around their unit to check if the landlord really is coming in without prior notice. Perhaps this is an idea to put the OP’s mind at rest (or not!). – Wench, Sydney

 

I would report him to the police! – Chris S, Sydney

 

The rules in Australia for Tenants are “don’t even bother trying to upset you landlord or you will be chucked out at the end of your lease”, thats the real truth.. There are no Tenancy protection laws of worth and every time there is call for change the Tenant’s always looses out… It really is about time that change was made to protect rights and not find your self in the street on the whim of a landlord who want’s an increase in his profits… Until negative gearing is dispensed with and long term Tenancy rights are given there is really no hope for a vast majority of decent people…. – Nigel K. Williams, Sydney

 

Call the police and tell them you suspect you have had an intruder. – John May, Urunga

 

Well rather than paying for a locksmith to replace the lock and risk being kicked out, why not buy a nanny cam, leave it looking at the door and motion activated (reasonably inexpensive these days) and if you catch him coming in you’ve got proof to take to the police. If you don’t see anything then you have piece of mind. – mtown, sydney

 

If he is going through a real estate agent then I’d have the locks rekeyed and take one new key to them. When you drop it off I’d ask to see the principal of the business (not the property manager). Explain that your landlord has been on your lease without prior arrangement, that he is creepy, that you are a single female, that this is in breach of the Act, and rather than call the police you have decided that future access is to be arranged by the agent. Leave the key with them. Leave no doubt that if this happens again the police will be called.

If there is no agent then rekey the locks and you know that brother of one of your friends who is physically intimidating and yet sane? Arrange with him to give the key to the landlord with a small lecture about the law and a comment how a old man alone inside a single woman’s lease can be so easily misunderstood as deviancy. See if he can’t have that chat with his wife present 🙂

Then, if this happens again, call the police the moment you realise he is there. Don’t discuss the situation with him — you’ve already had that discussion and what he is doing now isn’t ignorant. Without prior arrangement he is trespassing. Landlords can be creepers too.

I’m a big bloke and I’ve had to chat with two landlords of my sisters’ friends, so I’d say that misbehaving landlords is pretty common. – glen, semaphore

 

Install an alarm, the ones which gets activated when a door is opened, and make sure the deactivation switch is hidden in another room. Get one of those wireless versions. So next time he does that he will end up learning a good lesson.
Please note these days such alarms are quite simple to install.

If you are really concerned that he might be accessing your unit while you are away even when there is no need for repairs, it is time to gather evidence. Buy your self a tub of talcum powder and thinly spread inside of your door as you get out. When you come back note for unusual foot prints. This is how I caught a house mate who was accessing my room while I was out. – options

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[Jimmy-T]

The simplest way to do this is to define what a visitor means in your complex. It may be easier to add this as a ‘rule’ rather than a by-law as chummy has one quarter of the votes and can block any by-law changes.  So get a definition ‘visitor’ with regards to parking a common definition is no more than six hours at a time on no more than two consecutive days – something like that.

 

Then hit the vistor with a Notice To Comply and let them fight it in the CTTT if they think they can get away with it – or face fines of up to $550. 

If you and the other three owners collectively have the Unit Entitlements of more than 75 percent, you can and should make this a by-law – and consider adding an ‘excess parking” rental charge of $10 an hour for anyone who overstays. 

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[Jimmy-T]

Your pergola will almost certainly be attached to Common Property at some point and this may require a special resolution by-law which will cover such items as ongoing maintenance of the pergola (your responsibility) as well as ensuring that a future Owners Corp doesn’t change its mind and ask you to remove the structure. You’d do well to just accept that and get a strata lawyer to draft the required by-law for approval. The assurances you are giving are basically what a by-law would provide but it would also protect your and future owners’ of your property’s interests.

The issue of council approval depends on the council but they usually take little interest in it – especially if it is approved by the Owners Corp and doesn’t affect other buildings.

As far as changing her advice, the Strata Manager is clearly not sure of the laws herself and in any case, can only act as instructed by the OC. The final advice sounds right and I would proceed along the route of getting a special resolution approval, subject to the OC approving the design and materials (if need be) and you employing a reputable builder.

Meanwhile get bthe council’s planning department to tell you exactly what they need from you and do your best to comply.

It’s tricky but it’s better to be street legal than fighting either your neighbours or the council.

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[Jimmy-T]

There’s actually nothing ambiguous about the by-laws.  They operate over and above the standard council rules, rather than instead of.  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.

The difference with the council by-laws is that you can get the authorities involved as well as the Owners Corp,  if the noise goes past the statutory hours.

Now that polite discussion has failed, you could try applying to your District Court for a noise abatement order. Or you could even threaten action at the Supreme Court, although you would have to have a case for damages for them to even take an interest.

In fact, a call to a strata lawyer might be well worthwhile.  A lawyer’s letter explaining owners’ responsibilities under the Act often has more effect that a knock on the door.

But really, this is an EC issue and you should ask them why they are even on the committee if they aren’t interested in upholding the by-laws.

Apart from that, your only recourse is an application directly to Fair Trading for a Notice To Comply which comes with the threat of a fine attached if he continues to ignore this. Because by-law enforcement isn’t compulsory in NSW, individual owners and tenants can take cases to Fair Trading themselves.

You’ll find the necessary forms here. Try to get a couple of neighbours to support you to both share the cost and bolster your case.

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[Jimmy-T]

Here are a couple of standard by-laws – you may have these or similar:

1 Noise

An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

5 Damage to common property

(1) An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the owners corporation.

(2) An approval given by the owners corporation under subclause (1) cannot authorise any additions to the common property.

My building also has a by-law that specifically forbids alarms in apartments. Yours may have variations on these.

So the process would be a) get the EC chair or Strata Manager talk to the owner about removing the alarm and at least getting permission for the camera, or having it removed from common property. b) identify which by-laws they are breaching and then ask an executive committee meeting or your strata manager to issue a Notice To Comply for each of the by-law breaches you have identified.

After that it’s up to the owner to comply or face action at Fair Trading and possible fines at the CTTT.

If the EC declines to take action – as they might, because he is a member – you can go to Fair Trading yourself to initiate a complaint. You can find out more about that process HERE.

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[Jimmy-T]

@struggler said:

If it is not compulsory for an EC to enforce by laws, then where does this leave owners?  If an EC picks and chooses which by laws they enforce (and for whom), what can they do if a once by law abiding owner just decides to break a by law?  If the EC has a record of doing a bit here and there, can they then come down on an owner who decides to join the rebel pack?

The legal key to this puzzle is that (in NSW) an owner or tenant can seek redress from another owner or tenant directly via Fair Trading and the CTTT.  The fact that the EC has chosen not to get involved, of course, leaves the complaining owner out on a limb (as in the case you describe) but not without recourse to a legal remedy.

In the case of the woman and the mad parker, I wouldn’t wait any longer and get the mediation form into Fair Trading ASAP.

The long term solution is to wait until the AGM and ask EC members what they’re doing standing for election if they aren’t prepared to uphold the standards of the community via the by-laws.

And if I was accused of breaking a by-law (heaven forbid!) I would just point to all the times the by-laws hadn’t been enforced and claim victimisation (on the basis of race, height and weight).

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[Jimmy-T]

There’s two ways of looking at this but I wouldn’t go to the barricades over either of them: this is either your light for your benefit and you have been allowed to place it on common property or it’s their light and you have sole use of it.
I reckon if push came to shove, the Owners Corp would have a very strong argument for saying this is your responsibility since it only benefits you and your guests.
On the other hand, if there’s a safety issue – the CP area under the light would be unsafe without it – , then they would probably have to provide a light in any case.
For the sake of good relations with your neighbours, I’d just buy the new light globe and ask them for help in replacing it if it’s not readily accessible.

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[Jimmy-T]

You are responsible for the actions of your guests and any damage they may cause. That means if you weren’t insured, you’d have to pay all the bills out of your own pocket. The fact that you were insured is a blessing, the fact that your insurance didn’t cover all possibilities is unfortunate. If you feel your insurer is being unfair, take it up with them. Meanwhile, I’d be making a call to the idiot who left the tap on and asking what they plan to do about it.

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[Jimmy-T]

An individual owner can raise a complaint at Fair Trading and ask for mediation, followed by a Notice To Comply, issued by the CTTT.

You can’t, however, expect much response from either body about an EC that’s selective in its enforcement of by-laws since enforcement is not compulsory. In extremis, however, you can ask the CTTT for a demonstrably dysfunctional EC to be replaced by a strata manager.

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[Jimmy-T]

Going ahead and doing the work is risky. A final warning that you plan to take the EC to the Supreme Court (not the CTTT, because you intend to claim damages as well as force them to do the work) may get things moving. An application to the CTTT for a ruling forcing them to undertake remedial work may have the same effect. Either way, talk to a strata lawyer ASAP.

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[Jimmy-T]

OK, what do you mean by “what about tenats and OHS”? Do you mean are they liable? or do you mean are they covered? Pleas be a bit more specific so we can answer your question.

JimmyT

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[Jimmy-T]

I would assume that the Strata Manager wouldn’t be so stupid as to send a letter that was defamatory. There are plenty of ways of letting the alleged miscreants know they are being watched without giving their lawyers a free kick. But the cavalier behaviour of some RE agents is a source of many problems in strata and it’s time they showed some responsibility. Calling the owners liars is just as bad as telling the agent to pull hois head in.

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[Jimmy-T]

Not all blocks have the noise by-law. I know of at least one where it was removed at the development stage so that owners in the know could renovate and amalgamate their properties with impunity (thereby enriching the RE agent who was its chairman). The standard by-laws are optional suggestions – they are not law.

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[Jimmy-T]

You can hold a general meeting and hope to get the 75 percent of votes required to declare his or her seat vacant. You could pass a motion of censure on the EC member which would be published in the minutes. Or you could just wait till the next AGM and vote them out (by replacing them with a preferred candidate.

Probably easier to offer them the otion of resigning or facing a motion of censure.

All of this is dependent on you having proof that they did this – a false accusation could lead to a nasty and expensive legal action.

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[Jimmy-T]

There is a simple formula – the assessed and agreed addition to the value of the property, minus the cost of the work, is the amount that should be paid to the Owners Corp.  the renovator should also pay the cost of the special resolutions and by-laws required to make this legal.

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