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It's true that the smoke that starts inside stays inside but not all apartments have connected ventilation. And, to be fair, the argument that we get so many carcinogens anyway is a wee bit specious. There's a cumulative effect in these materials and taking one element out of the system must make a difference.
There is surely now no doubt that passive smoking causes actual harm as well as personal distress for individuals. Right now there is a section of the strata Act that says even if you live in a pet-friendly building, if your pet is damaging someone else's health (through allergies etc) it has to go (see below, but bear in mind the the legal term nuisance is a lot more specific than just 'annoying').
So, if you can force someone to give up a pet, why not smoking if, in fact, it does cause a problem for someone else. People have the right to damage their own health (with some drugs but not others) but you don't have the right to damage someone else's, including your own kids.
I can see the day come soon when there will be designated smoking and non-smoking buildings … until someone in a smoke-friendly building gets cancer and sues the OC for encouraging them to smoke.
151 Order relating to animal kept in accordance with by-laws(1)
An Adjudicator may make one of the following orders if the Adjudicator considers that an animal kept on a lot or the common property in accordance with the by-laws causes a nuisance or hazard to the owner or an occupier of another lot or unreasonably interferes with the use and enjoyment of another lot or of the common property:
(a) an order that the person keeping the animal cause the animal to be removed from the parcel within a specified time, and to be kept away from the parcel,
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Strata Managers will often tell you that smaller complexes are much less cost-effective for them to manage because the basics take just as mush of their time but there is a smaller pool of volunteers from which to draw EC members to run the building, creating issues. Also, in smaller complexes, the issues can get very personal very quickly which creates a lot of telephone and email traffic. However, there is a limit on how much they can charge in a competitive market.
Strata Community Australia are not allowed to set fees for their members as that would be considered anti-competition. As afar as fees for photocopying are concerned, this is something you should negotiate in your contracts. However, you will get good advice from the Owners Corporation Network (www.ocn.org.au) on what others pay.
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FlatChatFan said:
How do we know what is an adequate rate of levies? Several months ago I think this forum showed a formula that could be used but I have been unable to find that information again.
I realise that Strata plans with more basic accommodation would pay a lower rate than a high rise building with lifts, pool and gym provided. Please advise.
You're right. There are so many factors at play when it comes to calculating levies but basically it comes down to three elements: the number and cost of facilities and services, the age and condition of the building and number of lots across which the cost can be spread.
For instance, apartment blocks with “resort style” facilities like concierges and swimming pools can be quite expensive. Hotel conversions are notoriously expensive because they often have a lot of lifts servicing a relatively low number of units.
There are developments now that are being designed to keep the levies low which they can do as they are close to commercial or public facilities for those who want them.
Other things that can skew levies are exorbitant management fees and lift maintenance contracts that have been negotiated by the developer (who often doesn't care how much they cost the owners as they, the developers, don't have to pay them). A good example of this is when developers get a discount on their lift installations – a saving to them – in exchange for an exorbitant long-term lift management service contract that the apartment owners have to pay.
But to answer your question as a rule of thumb, a high-end building with lots of facilities, over 100 lots and with no major maintenance issues, should have levies somewhere around 1 percent of the purchase price of the apartment plus or minus a couple of points.
A new development with fewer units, facilities or common property could come in at 0.5 percent or thereabouts.
But this is only a very basic rule of thumb and every building is different. The best way to keep your levies low is to examine every contract and see if you are getting value for money. Check on wastage such as water leaks and excessive use of electricity which will not only save you money but will help the environment. Have a look at GreenStrata for more information on that.
The worst way to reduce levies is to starve your sinking fund, reduce services and neglect maintenance. It may give you a short-term financial benefit but you are effectively reducing the value of every property in the building and that's too high a price to pay for the majority of owners.
This may sound tough, but if your building is well-run and the budget is tightly controlled and you still can't afford the levies, then it's time to start looking for a new home.
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It seems clear to me that the the OC, as represented by the Executive Committee, has a lot of leeway when it comes to organising emergency repairs. The general thrust of the NSW Strata Act (quoted below) is that protection and maintenance of common property is more important than strict adherence to procedure.
As long as everyone is acting openly and reasonably and in good faith, you need to do what you need to do. That's one of the reasons ECs have insurance … to protect them in case they make a mistake despite the best intentions.
The OCs responsibility to maintian and repair Common Property is paramount, superseding even court action that might be underway regarding repairs and defect rectification. You just need to let eveyone know what needs to be done and then either get on with it or have a very good reason for not doing so.
As you will see from these sections of the Act below, even if the cost of the repairs SHOULD be borne by a lot owner, the OC is empowered to go ahead and make the repairs, regardless.
Seriously, what's the worst that can happen if you jump the gun and don't get the support of the owners after the event? Nobody goes to jail or even gets fined for making a bad decsision in strata.
62What are the duties of an owners corporation to maintain and repair property?
(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
Note. The decision of an owners corporation under subsection (3) may be reviewed by an Adjudicator (see section 138).
63What power does an owners corporation have to carry out work and recover costs?
(1) Application of section
This section applies if a person who is required to carry out work as referred to in this section fails to carry out the work.(2) Work required by public authority
An owners corporation may carry out work that is required to be carried out by an owner of a lot under a notice served on the owner by a public authority and may recover the cost of carrying out the work from the owner or any person who, after the work is carried out, becomes the owner.(3) Work required to be carried out under term or condition of by-law
An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot under a term or condition of a by-law and may recover the cost of carrying out the work from that person or any person who, after the work is carried out, becomes the owner of that lot.(4) Work that is duty of owner or occupier to carry out
An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot in order to remedy a breach of a duty imposed by Chapter 4 and may recover the cost of the work from that person.(5) Work required to be carried out under order
An owners corporation may carry out work required to be carried out under an order made under this Act and may recover the cost of carrying out the work from the person against whom the order was made.(6) Recovery of costs as a debt
The costs incurred by an owners corporation in carrying out any work referred to in this section may be recovered by the owners corporation as a debt.64What power does an owners corporation have to carry out work at its own expense?
(1) An owners corporation may carry out such work as is necessary to rectify any of the following defects:
(a) any structural defect in any part of a building comprised in a lot that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property,
(b) any defect in any pipe, wire, cable or duct that provides, or through which passes, any water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil or other service (including telephone, radio or television services) within a lot.
(2) An owners corporation may carry out work referred to in this section at its own expense if the cost of the work cannot be recovered from some other person.
The following restrictions apply only to buildings of 100 lots or more but they are relevant to
Division 3Restrictions on spending
80ALimit on spending by executive committees of large strata schemes
(1) If a specific amount has been determined as referred to in section 75 (5) for expenditure on any item or matter, the executive committee of the owners corporation concerned must not, in the period until the annual general meeting next occurring after the determination was made, spend on the item or matter an amount greater than that determined amount for expenditure on the item or matter plus 10 per cent.
(2) The owners corporation of a large strata scheme may by resolution at a general meeting remove the limitation imposed by subsection (1) generally or in relation to any particular item or matter.
80BQuotations to be obtained for certain items of expenditure by large strata schemes
An owners corporation of a large strata scheme must obtain at least 2 quotations in relation to proposed expenditure in respect of any one item or matter if the proposed expenditure will exceed an amount prescribed by the regulations for the purposes of this section.
80CExceptions in relation to emergencies
Sections 80A (1) and 80B do not apply to expenditure undertaken for emergency purposes, including, for example, expenditure to remedy any of the following:
(a) burst or blocked water or sewerage pipes,
(b) serious damage caused by fire or by storm or any other natural disaster,
(c) unexpected electrical or security system failure,
(d) glass breakages that affect the security of any building in the strata scheme or could result in damage to the inside of any such building.
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We shouldn't confuse shared ownership and responsibility with shared access. Using the case that started this discussion as an example, there are elements of common property that aren't available to everyone – like the airspace outside someone's unit – but are still common property.
Taking this further, if you have, say, an underused bicycle storage area (shared access) which an owner wants to buy from the OC to use as a wine cellar, for instance, everyone benefits, including the the people who need to find somewhere else to park their bikes, provided a commercially valid amount is paid for the room and the money goes into the admin fund.
The 25 percent threshhold for changes to by-laws (which the sale of common property would require) is very hard to overcome if there is a well-organised objection to any such proposal. If unanimity was required, nothing would ever get done.
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Absolutely. The Strata Managers are your contracted agents and you are entitled to see the details of every cent spent on your behalf. That said you have to allow a little leeway on hard-to-quantify items like phone calls and stationery.
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How about this?
You must not smoke cigarettes, cigars or pipes while you are on Common
Property or allow smoke from them or from a barbeque to enter
Common Property or another Lot or to interfere with any other
Owner’s or Occupier’s enjoyment of their Lot or the Common
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This may sound like splitting hairs but it's not so much all owners collectively but each individual owner affected (which amounts to the same thing).
What's happening here is a transfer of responsibility for common property from the Owners Corporation to individual owners. The mechanism for that is a kind of special resolution by-law.
Under a special resolution by-law, individual owners have to agree to take responsibility for common property. This is most often a trade-off for them getting something they want (such as being allowed to build a deck, as in the original email).
The point is, the Owners Corporation can't just decide, even by an overwhelming majority, to pass its responsibilities on to individual owners without their consent.
So this isn't really a unanimous vote, per se, but you would need to get all owners to agree to it, which amounts to the same thing. So your strata manager is right.
By the way, I'm curious to know what the problem is that would be resolved by your OC handing over responsibility for front doors to individual owners. I can't help thinking there might be a smarter, cheaper and more achievable answer than trying to get everyone in the complex to agree to a special resolution.
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You don't need it to be in the by-laws … it's in strata law.
117 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
Call Fair Trading on 13 32 20 or go HERE to download the form you'll need to arrange a mediation – a compulsory first step before you can pursue a complaint at the CTTT. If mediation fails the next stage is to ask for an adjudication. You will need as much documented support as you can muster, including statutory declarations or notarised letters from neighbours and friends who have witnessed the smoking and its effects. A statement from your doctor that the neighbours smoking is affecting your health will also help immensely and, even if they don't want to take on the issue themselves, a letter of support from your Executive Committee will help too.
There has been a case in the past where the CTTT ordered strata residents to stop smoking. That is not a true legal precedent and the CTTT is notoriously fickle but it is an indication that you have a reasonable chance of success if you pursue it.
Smokers do have a right to do what they want in their own homes – but not if it adversely affects their neighbours.
In the long term, you should propose a by-law for your next AGM that prohibits smoking on common property or allowing smoke to pass over common property or into another owners lot. This is a standard by-law that most new buildings have as part of their basic health and safety measures.
Many smokers these days are aware of the offence and damage their addiction causes other people and take steps to avoid it. Anyone who doesn't is utterly selfish and inconsiderate and deserves no sympathy from anyone. This isn't about freedom or the “nanny state” – it's about basic human decency.
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I really have no idea where your BC manager (or is it strata manager?) gets this idea.
You are right in as much as you will need a by-law to be passed which should include clauses that state that you and subsequent owners of the property will maintain the deck and should include a payment to the Owners Corp for the use of the airspace (based on the increase in value of your unit minus the cost of the deck's construction). You should also be responsible for the costs involved in drawing up the by-law and holding the general meeting to pass the by-law.
You may also require planning approval from your council – that will be assisted by the support of your executive committee (a simple majority will suffice).
As I said, I have no idea where the BC manager gets this idea that you require 100 percent approval and you should ask him where this is stated if he insists it's true – maybe you have a by-law that says any changes to common property have to have unanimous approval. If so, propose a change to the by-law … again that would only require a 75 percent vote in favour.
But honestly, I think the manager is wrong and you should worry about how well equipped he is to do his job if he doesn't have a basic grasp of strata law.
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I wonder if ASH (Action for Smoking and Health) would be interested in raising a fighting fund to get cigarette smoke legally established as a 'nuisance' under the terms of the Strata Act. This would probably take a High Court action for a definitive precedent to be set.
Also, under the suggested revisions of strata laws, we should pressure the government to make the enforcement of by-laws obligatory rather than optional for Owners Corporations. Why would that make a difference? Because you would know what kind of place you were moving into from reading the by-laws.
For instance, in my own building we aren't allowed to have air conditioning – this is a good thing as the building has won awards for being designed to be cooled by natural airflow. Result: You have to keep your windows open in Summer.
We also aren't supposed to let smoke from cigarettes, cigars, pipes or barbecues pass from balconies into other lots … but the majority of members of the EC have barbecues (not, by the way, the majority of residents) so that one is never enforced. Result: Choose between baking in the heat of summer with the windows closed or being choked by the handful of selfish bastards who don't care where the smoke and stink from their precious ciggies and barbies goes (as long as it's not in their units)…
Just as an aside, did anyone following this story notice how the poor bloke in the centre of all this went from “fitness fanatic” to “cancer victim” in the headlines? Meanwhile, the story refers to 'body corporate' and 'tenancy tribunal'. No biggie, in either case, but an indication of how far away we are from the majority of people in this country knowing (or caring) what goes on in strata.
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Hearings are underway right now about revamping the CTTT (and other tribunals) HERE and into bringing strata law up to speed HERE. Chip in with your suggestions while you have the chance.
Meanwhile, your EC should be sending a polite notice out to all residents telling them that you have issued an Notice To Comply to one resident about parking on Common Property and others will follow if abuses continue. If the NTC is ignored it could lead to heavy fines and these notices apply to tenants as well as owners. That should save you the hassle of having to have a meeting every time another opportunist rogue parker notices that the space is suddenly free.
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I would make this as matter-of-fact as possible so as to avoid it getting personal (if you can).
So my letter would read something like:
It is my understanding that legally, the Owners Corporation has absolutely responsibility for the maintenance and repair of common property. This responsibility is not reduced or mitigated by, for instance, the delay or inability to get tradespeople to effect repairs.
I refer you to the Strata Scheme Magagement Act
61 What are the key management areas for a strata scheme?
(1) An owners corporation has, for the benefit of the owners:
(a) the management and control of the use of the common property of the strata scheme concerned, and
(b) the administration of the strata scheme concerned.
(2) The owners corporation has responsibility for the following:
(a) maintaining and repairing the common property of the strata scheme as provided by Part 2.
I also have been advised that any loss or damage cause by a failure to maintain or repair common property is to be covered by the Owners Coporation and/or its insurers.
Although I could claim for the entire costs and loss incurred in the instances a) and b) my own insurance has covered part of these costs.
However, I feel it is only right and fair that the OC should pay the excess so that I am not out of pocket due to a failure by the OC to meet its statutory responsibility to maintain and repair common property.
Please forward me a cheque for the amounts $xxxx within 30 days.
Now, if the Executive Committee decides not to pay the excess, your next question has to be to ask yourself if it's worth all the hassle and bad feeling that would come from pursuing this through Fair Trading and the CTTT. Only you can know the answer to that.
In Strata there's legal right and wrong but there's also a social cost to pursuing your 'rights', as well as financially and in terms of your personal time and energy.
In short, ask yourself if it's worth all the hassle to pursue this if the EC doesn't pay your excess. Good luck with it.
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The owner is ultimately responsible for the behaviour of the tenants. Your strata manager should send thema bill for cleaning up and damages to common property. The landlord can then take the money off their bond. But you'll have to move quickly before the bond is returned because it will then be harder to get money from the owner.
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The strata manager should be asked to drop a letter in asking simply “are your renovations compliant with our by-laws?” The next line should read: “Please be aware that we have the legal right to compel you to restore non-compliant changes to common property (floors and ceilings, for instance) at your expense.
See if that gets anyone's attention – and at least they can't say they weren't warned when the NTC arrives telling them to carpet their floor and replace the ceiling.
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