Forum Replies Created
-
Replies
-
Sounds like the tree is her property and therefore her problem. It’s a roundabout argument but the OC could charge her for damage done to common property (damp in the walls cause by her tree). It would be a good idea all round to sit down and negotiate a solution.
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.
Sounds like the tree is her property and therefore her problem. It’s a roundabout argument but the OC could charge her for damage done to common property (damp in the walls cause by her tree). It would be a good idea all round to sit down and negotiate a solution.
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.
Under the Work Health Safety legislation you are liable if you are aware of a safety problem that may affect employees but choose to do nothing about it. The responsible thing to do is to have an OHS survey done and then act on its findings. The irresponsible approach is to decide it doesn’t affect you and then have an accident and discover you were warned about the risk in the past.
You insurance is there for occasions when you make a mistake in good faith. Choosing to ignore problems, especially when they have been pointed out to you, is culpable negligence and would probably invalidate your insurance anyway.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.
What does your strata plan say? Courtyards often aren’t common property – in which case your owner has no claim – but you won’t know for sure until you check the plan.
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.
@Unitman said:
Our question is simply this… “Are we actually liable to fix a wall which is nothing more than a cosmetic repair that was originally repaired poorly by the developer?” and “Would repairing this wall open us up to other potential owners who don’t like how something looks and demand it is fixed?” Any advice and help would be hugely appreciated.
The Owners Corp is responsible for repairs to common property and to any private property that was damaged when common property was repaired. So yes, the OC must make good the damage and, if you think it’s worth it, you can pursue the developer to recompense you. But this doesn’t open you up to any other claims based on aesthetics – unless they were caused when common property was being fixed.
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.
OK, regardless of what the owners say, they are in breach your by-laws and that has to be dealt with, by issuing a Notice To Comply, if necessary. If they can prove the Real Estate agent sold them the property on the basis of a false promise, then they should take that up with the RE agent. But that doesn’t alter their obligation to abide by by-laws
Meanwhile, I suggest a strongly worded letter from your strata manager telling the RE agent that if they continue to mislead potential purchasers about the illegal use of common property, you will report them to Fair Trading and the Real Estate Institute with a view to having their license revoked..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.
The law is very vague on this. You must have a plan and you are supposed to fund it. But then you are also expected to review it periodically and there are no penalties for not funding it.
However, it’s a really bad idea to scrimp on your sinking fund if you have identified areas that will need repairs and maintenance. There are plenty of options available to you that don’t include a special levy, including a gradual increase in levies over several years or a strata loan.
Re-think the finances but don’t create problems that will come back to bite you some time in the future.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.
@defectdetective said:
Why not a letter/email writing campaign against the Minister?Jimmy, I will understand if this has to moderated out, but I have been in a vicious fight with developers and my feelings are rather jaundiced!
Hey I only edit out the personally abusive, the exceptionally stupid, spam and the potentially libellous. By all means please write to the Minister. Here’s his email address: office@roberts.minister.nsw.gov.au.
Fire away.
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.
This is a common law issue rather than a strata issue You should ask your insurers to pursue the Owners Corporation for damages or, if they aren’t interested, take a small claims case against the Owners Corp at your local District Court,
Just to be clear, your claim is against the owners corp as they have failed to maintain their equipment properly. They are the ones who have to claim against their insurance – not you.
You have been given the runaround and it’s time it stopped.
Probably the first stage is to issue the Owners Corp (via the strata manager or Executive Committee secretary) with a damages bill and a notice of 30 days to pay or you will take legal action. The OC may well say their insurance doesn’t cover it. That’s not your problem – they should have better insurance coverage. The OC has to maintain common property and is responsible for damages any failure of common property causes. That’s it in a nutshell.
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.
@Whale said:
Whilst I’m not for one minute suggesting that an Owners Corporation should neglect or delay acting on its responsibilities to properly maintain its Common Property, using possible fines and personal liability under the new Work Health & Safety (WH&S) Act as the proverbial Sword of Damocles is a bit over-the-top.Whilst I agree that amendments to the WH&S Act capture mixed-use Strata Schemes (i.e. with shops or similar incorporated), there’s a general exemption for fully residential Strata Schemes where purely domestic activities are undertaken.
Whale is right on both counts (of course he is – he’s a StrataGuru, after all). Firstly, don’t panic – just be aware that if someone tells you that you have a safety issue in your building, you can’t just ignore it. Get it checked by a professional and respond accordingly.
However, I wonder how many strata blocks fulfill the “purely residential” definition these days, with tradesmen and women and cleaners working on-site (with the question of whether or not they are employees subject to legal interpretation). OK, self-employed writers sitting at home tapping away on their strata advice websites may not make your building a workplace but it doesn’t take much to change its status.
There was an extended discussion on this about a month ago. To read it all, go HERE and read from the bottom where there are lots of useful and informative links.
To answer the question of ‘who pays?’, I think because there is an element of personal liability involved (they can’t send the whole EC to jail), even if the OC was fined as a body, owners could probably take action for compensation against individual members of the EC who chose to do nothing, if it could be shown that they were given sound advice and outvoted others who wanted to abide by the law.
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.
@Bennifer said:
We have a new owner who has decided that he doesn’t like paying high strata fees (who does) but he has decided to arrange an EGM and sack our current management company. Given that the owners present at the AGM set the fee structure and not the SM, its strange that some owners think the high fees are somehow the SM’s fault! The new owner has arranged a small band of owners (who do nothing) to support him because they all like the idea of paying less $$$. The company that he has selected have no website and are not a member of SCA and they are not even from our local area but they have promised the world for less money ….Yes, you must write to all owners and tell them what a HUGE gamble is being taken with their investments and homes. I would strongly advise anyone not to buy into a property where the Strata Manager is not a member of SCA, so I certainly think you are asking for trouble by changing to one who isn’t.
This is a classic “pig-in-a-poke” situation where you are being asked to gamble the biggest investment in your lives on what? A promise? No guarantees, no track record … just a no-name company that will potentially cause you immense grief, hardship and hassles.
If there are problems, solve the problems – don’t jump into the arms of some unknown and unaccountable business on the say-so of one owner and a few penny-pinching cohorts.
You are right, the owners have to be told that THEY are the ones who set the levies, not the strata manager. And how exactly does this new person plan to save money anyway? Cutting services? OK, take a few percent off the value of your homes and the rent you can charge tenants.
Reducing the amount paid into the sinking fund? Take another few points off (and get ready for the costs of legal challenges when someone realises you aren’t fulfilling your legal obligations). Maybe you’re going to get cheaper insurance (although this unregistered Strata Manager will certainly be getting a kickback – and you will probably be getting less coverage than you had before.)
There are two kinds of costs in strata – the ones you can’t legally avoid and the others that you can. If the latter isn’t excessive – and they can obviously be fixed – it means the new SMs are planning to either cut services like cleaning or security and/or avoid your legal responsibilities. When potential buyers realise this (as they will through strata searches) they will run to the nearest property where the finances are properly managed, the legal liabilities are met and the Strata Managers are members of the SCA.
By the way, in other cases I know of where Owners Corps have changed to non-SCA strata managers, by the time they realised they had made a mistake, they had often locked themselves into contracts that had no performance guarantees, no legally enforceable liabilities on the Strata Manager and no way out.
If these people are so convinced that there are ways of reducing the levies, why don’t they just raise their plan at the next AGM so everyone can see it and vote on it? Why shoot the messenger by getting rid of the Strata Manager? Is it because the SM has enforced the rules and they don’t like it?
It really isn’t that hard to become a member of the SCA – all you have to be is a licensed strata manager. I’m sure they will have plenty of arguments about why they “choose” not to join. Maybe they are just a small independent (which is another worry if they aren’t based in your area). But, basically, if a strata manager isn’t a member of the SCA, you have to be extremely wary.
My last piece of advice is that if the other side win and sign a contract you haven’t seen to hire a strata manager you don’t know and who isn’t even a member of the SCA, to make cuts that they can’t explain or justify – you have a out a year in which to sell your apartment before the property values and lifestyle start going down the gurgler.
Feel free to copy these comments in a letter to your owners – and you need to get that out ASAP to gather the proxies. Meanwhile, come up with a plan that shows where costs can be cut – and offer that as a choice that the EGM.
But don’t let the SM take the fall – they can only act as instructed by the Owners … and that means everybody including the CostCutters.
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.
@Billen Ben said::
The Chair is running the meeting and the Chair puts motions to the meeting so if you vacate the Chair, via a motion, then you have no Chair and therefore nobody is running the meeting, that makes anything that follows open to challenge because do you even have a meeting?
This is the kind of tedious nitpicking that drives people away from Executive Committees. This what section 8 of Schedule 3 of the act says.
8 Chairperson to preside at meetings
(1) The chairperson presides at all meetings of the executive committee at which the chairperson is present and, if absent from any such meeting, the members of the executive committee present at that meeting must appoint one of their number to preside at that meeting during the absence of the chairperson.
It’s not rocket surgery. The chairman is absent (because he hasn’t been elected yet) and the obvious choice to run the meeting until the new chair is elected is the secretary although it could be anybody the meeting chooses. Not even the geniuses at CTTT would uphold a claim that the chairman wasn’t properly elected because there wasn’t a nomination in the motion of vacation of the chair.
It may not be technically perfect but it gets the job done and, politically, means you don’t have to show your hand too soon. It also means you can avoid making this a battle between two personalities rather than an effort by the other members of the EC to make the committee more democratic.
You can quote all the legal textbooks you like but here in the real world people get stuff done and if they are not exactly legally compliant at any given time, they are not alone in strata in NSW. You do what you need to get what you want.
Horseley is mostly about business meetings and, in any case, unless it has been adopted as that strata’s meetings bible, it has no standing. Ilkin, though a seminal writer on strata law and an invaluable source for many years, is a lawyer – he’ll tell you the right way which is not always the best way.
I’ve seen this done exactly as I described and it worked. Tell me a case where what I have described has been successfully challenged in court and I will retract and apologise – but start another thread to do it. There’s an important and very real issue being discussed here and I don’t want it bogged down in legalistic textbook BS that, at the end of the day, makes little or no difference.
If it makes you happy, I’ll repeat my second suggestion that there should be two motions, one to vacate the chair, another to elect a new chairperson. That’s it. Take the legal debate elsewhere if you want to keep going with it.
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 think my method for removing the chairman – a simple motion to declare the office vacant (or declare the office vacant and seek nominations for a new chair) – is possibly more correct and less open to challenge. Once the office is vacant, the Secretary is entitled to take nominations and vote on a replacement which can be done without having to name the replacement in the minutes. Since the first rule of politics is to never ask a question to which you don’t know the answer, the replacement chairman or woman would already have been identified and the votes lined up.
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.