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kentstreet said:
The executive committee meeting … advised they would direct me to try and claim through their insurance however this seems a “cop out” as we had already been advised previously their insurance would not be responsible for my carpet as it was not a fixture and would only be responsible for the skirting boards which are a fixture and have very slightly buckled.
To replace them however would mean repainting which apparently again would be at my own expense so I would rather they remained.
… the executive committee chairman was sympathetic but basically seems to think if they compensated me it may only make the other owners reluctant to get contents insurance and did not seem to understand the body corporate would be liable.
Whoever you are dealing with in your Owners Corporation seems to have very little knowledge of strata law. They have to pay for the paintwork that is required after they have repaired the skirting. Whatever they damage, directly or indirectly, they have to repair – they are confusing responsibility for wear and tear with responsibility for damage.
Talk to a lawyer about sending a letter of demand. You don’t have to claim through their insurance – the Owners Corp do … after they have fixed your apartment which should be their priority.
And send a motion to the next EC meeting demanding that the office-bearers either undertake some basic strata training (there’s plenty around) or get their strata manager to advise them on the correct procedure before they start giving incorrect and costly advice to owners.
You are 100% in the right on this and they are 100% liable. To quote the Urban Spaceman 'go them' if only to teach them a lesson about getting things right rather than coming up with bullcrap about who's responsible and who isn't.
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Austman said:
So OCs and OC's insurers often seem to initially say “we do not cover internal lot carpets or paintwork etc”.
For some it's ignorance, for others it's a deliberate cop-out. But if a failure in common property causes damage in anothe property it is the OC's responsibility.
It doesn't make any difference if a) wear and tear on paintwork and carpets are the lot owner's responsibility; b) the OC is inadequately insured. The OC can't throw the cost back on the lot owners and say “sorry, we weren't insured so we're not paying.”
It's a double fault for not maintaining common property properly and for not being adequately insured.
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Sarahs said:
I have been an owner here for 6 years, and have NEVER had an inspection. Our SM assures me that we have always had compliance certificates issued.
My immediate response is that it's good that you are finally geting fire safety checks rather than just having compliance signed off based on outdated paperwork. Your home may be fire safe but what about the flats all around you. Just last week a block of units had to be evacuated because of a fire started by a dropped cigarette.
Austman said:
How has the OC arranged access to all the lots? That in itself is nearly mission impossible for our OC!
We have annual fire checks and the OC gets everyone to comply by telling them if they don't make arrangement for access via the building manager then they have to ring the fire saftey people themselves and pay additional costs for an individual check. Seems to work
The new (NSW) memorandum on who is responsible for what suggests that hard-wired internal fire alarms that go back to a central board for the building are the OC's responsibility while self-contained systems within the lot are the lot owners'.
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Here's all you need to know. The Owners Corp is liable – end of story.
Your EC/building manager needs a serious wake-up call. This is their problem and they have to fix it pronto. How dare they say you have to pay for this yourself? When a similar thing happened in the Horizon building a few years age they rehoused all affected owners in a luxury hotel and did an industrial clean of their apartments.
Now, your building manager can either do this the easy way or the hard way. They can get on to this pronto – no arguments, no delays and no compromises – or you can take them to the Supreme Court (forget the CTTT) and demand damages for the repair and replacement and the cost of a proper clean-up, plus damages for the stress they have subjected you to (which is rising the more they delay), and all court costs.
In fact, I would get a lawyer to draft a letter saying exactly that (and include their legal fees in the demand).
This is a disgusting (in so many ways) abrogation of the owners corporation's responsibilities and they should be grateful you aren't a more demanding owner.
When they're done cleaning up your apartment, they should take a course in strata law and OC responsibilities. Let us know how you go.
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This may be money transferred from the sinking fund and not yet repaid or it could be money owed to the admin fun in levies.
What a lot of OCs do at a time of tight cash-flow is to maintain their liquidity by “re-transferring” the same loan from the sinking fund every three months until they are in a position to repay it. It’s not strictly legal but it’s not the end of the world it you keep track of it and for many OCs it’s preferable to having a special levy or raising levies to deal with a temporary shortfall because once they’ve gone up, levies never go back down.
Just keep an eye on it in the annual accounts and make sure it doesn’t get any bigger becasue that means your levies are too low and your sinking fund is being drained.
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AdrianAce said:
If the pipe burst without warning, it may have been no-one's fault and just one of life's accidents for which the law does not hold anyone responsible (which is why you have insurance).
Really? I would have thought you would be responsible for maintaining your property and for any damage caused when it failed. I take your point about it “just being on of life's accidents” but if you're not covered by insurance then it becomes “just one of those things you have to get your cheque book out for.”
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Kevv, you got an order from the Tribunal, the OC haven’t done anything, therefore they are in breach and can be fined.
Talk to Tenants NSW about the next step. You’ve already won – all you need to do now is collect the prize. And don’t forget that a majority of strata dwellings are tenanted. You are in the majority – you owe it to yourself and the next tenants to make sure this building manager is dealt with by his employers – the OC of your building.
This isn’t a strata problem – it’s one little psycho and if he was your next-door neighbour in a house you could have just as many problems but with no one to turn to.
And I’m guessing you have never been to prison or you would not have made that last comment.
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Urban Spaceman said:
These days, Jimmy, you seem to be living in some sort of strata Utopia; probably the same one as Struggler.
I don’t think there can be anybody (even Struggler) who is more aware of the problems living in Strata than I am . I’m the one who gets all the emails and reads all the postings and have been doing so for the past seven years.
Here’s a few points for you to consider …
If you have problems with your neighbours in a house – noise, abuse and all the other elements of antisocial behaviour, you are on your own.
If anyone’s strata is that bad they can always move out. There are plenty of buildings that run smoothly … or they can get a house.
The issues you are concerned about aren’t strata problems, they are people problems and the strata industry is maturing to the point where the bad apples are gradually being rooted out and a level of professionalism is taking over. But this is not going to happen overnight.
I too have seen the gossip mongers flourish and manipulate Executive Committees. I have seen nutters come and go (and been accused of being one myself). I’ve seen by-laws flouted and individuals targetted by mean-spirited and selfish owners.
I have encountered corrupt ECs in my own building and helped to clear them out. I have run campaigns to counter damaging cost-cutting by people who’d bought the best apartments in the building at bargain prices and then tried to reduce services to the bare bone so they didn’t have to pay very reasonable levies.
I’ve even been instrumental in getting the law changed so that developers couldn’t demand proxy votes as a condition of their contracts of sale. So please don’t tell me I have anything but a very clear view of the potential pitfalls of strata living.
I’ve been there, my friend, and done it. And along the way, in this job, I think I’ve heard every horror story there is.
But I’m also very pragmatic. Australia is still getting used to a way of life that has been evolving in Europe since Roman times. Even so, most people try to do the right thing most of the time.
But I’ve just started revising my Apartment Living book and I was shocked at how angry I was, ten years ago when it was written.
Maybe strata living has calmed down in the last decade or maybe I have – probably a bit of both. No system is perfect – you just have to make the best of what you’ve got and I still wouldn’t live any other way.
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I'm learning more about mango trees than I ever thought I'd need to know. Strikes me that if the person in question had just informed her neighbours about why this “weed” needed to be removed and why its removal wasn't an issue for the council or anyone else, everyone would have been spared a lot of angst.
But then we wouldn't have been educated on the downside of having mango trees (who knew there was one!?!)
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Urban Spaceman said:
'gslatts' and Jimmy, there are nine EC members; bar emergencies, surely doing things properly with a legitimate quorum at a properly convened but relaxed and informal EC meeting would solve the problem in a better way.
There aren't always nine EC members and even when there are, they're not always active. Sometimes there are small ECs running big buildings and vice versa – committees of nine in buildings with only a dozen units.
Executive Committee business being conducted by email and decisions being made, including some very important ones probably, mean nothing will be on file with the Strata Manager.
The ECs I know who communicate by email include the strata manager in the round robin – and if they don't they should.
Decisions aren't truly made until they are ratified at an EC meeting or an AGM. Any EC that makes major decision, especially involving spending large sums of money, without holding an open EC meeting is asking for trouble. However, a minor decision – like, say, paying a tradesman to fix a door closure, shouldn't have to wait weeks for an open EC meeting.
It's all very well to have the best intentions of ratifying decisions at meetings but in practise I bet that would seldom happens. And doing this retrospectively is probably wrong.
All EC decisions have an element of retrospection about them since the EC is subject to the will of the Owners Corporation which usually meets only once a year. In a large building a monthly meeting to ratify minor decisions and debate major ones is a good compromise. That way you don't spend all meeting explaining to someone who doesn't understand, for instance, that the aforementioned door closure is common property a an essial part of your fire safety measures.
Don't forget that the AGM can suggest who gets to read the ECs emails and how often meetings should be held. There are safeguards and at least there is a digital paper trail in email meetings which has to be an improvement of the rumour and gossip methods of days gone by.
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You and your neighbour can apply directly to the CTTT for an emergency order to impose a Strata Manager to run the building until this is sorted out. The running of the building is clearly dysfunctional and possibly corrupt so you need to clear the decks and the statutory imposition of a strata manager – who takes over all the duties of the OC and EC – may be the simplest way to do that.
First you will need to find a strata manager who is prepared to take on the role, then make an application for an adjudication imposing a statutory manager using THIS FORM. Then at the same time you need to make an application for an interim order using THIS FORM.
The idea of the Interim Order is to prevent any further misuse of the Owners Corporations seal or any other powers while the sacked Strata Manager still has all your papers.
You'll find a case study about the appointment of a strata manager HERE. It's a very different situation from yours but it will give you an idea of how it works.
If you have a new strata manager lined up, they may well help you with all this. If you don't have one arranged already, have a look here for some I recommend (although there are plenty of other excellent operators). Just make sure whoever you choose is a member of Strata Community Australia (formerly ISTM) or you could be entering a whole other world of pain.
(7A) Other limits on exercise of proxy
A vote by a proxy who is a caretaker, an on-site residential property manager or a strata managing agent is invalid if it would obtain or assist in obtaining a pecuniary interest for, or confer or assist in conferring any other material benefit on, the proxy.(7B) For the purposes of subclause (7A), material benefitsinclude, but are not limited to, the following:
(a) an extension of the term or an additional term of appointment of the proxy as caretaker, on-site residential property manager or strata managing agent,
(b) an increase in the remuneration of the proxy,
(c) a decision of the owners corporation not to proceed with, to withdraw, to delay, to compromise or to settle litigation or other legal proceedings relating to the proxy,
(d) any other decision of the owners corporation that affects litigation or other legal proceedings relating to the proxy.
As far as needing an EGM goes, yes you do need one before you can get legal advice (for which you are paying) but that can be called by getting signatures from 25 percent of owners. However, many OCs pass a motion at their AGM allowing them to seek legal advice as and when may be necessary, so that might already be on the books.
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This is very different from being paid as a member of the EC and the important thing is to have complete transparency. Put together a proposal of what you would do, how many hours a week you would spend and how much it would cost and make it very easy for the EC to dispense with your services if they are unhappy at any time.
Make your case to the EC but then absent yourself from the meeting when this is being discussed and voted on (as a matter of courtesy, rather than any legal requirement) and let the committee decide.
If they say yes, then if any whingers start up, you can honestly say that this was democratic, transparent and utterly fair and if they have any problem with your work, the EC can sack you.
By the way, the benefits of having someone in-house doing the work must be obvious to all concerned, but someone will always have a problem with arrangements like this, so be prepared. Otherwise, go for it!
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A couple of points. The Strata manager or OC has the power in an emergency (such as damage being caused by a water leak) to gain entry by force if necessary to fix the problem. That's the number one priority.
Secondly, they need to properly establish what 's causing the problem – a leaky pipe might not be a problem unless, for instance , the waterproof membrane is also defective. That could make it a common property issue.
Finally, let's just accept the principle that whoever caused the damage pays for the repairs. This is an entirely separate issue from the flooring noise. Send him a letter of demand to pay for the paint work. How to do that and then pursue a case through the Small Claims court is explained HERE.
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gslatts said:
Is it usual for all EC communiations, including voting, to be carried out via email?
This is a common enough way of getting day-to-day decisions made but every so often you need to have an EC meeting to formally approve and minute all decisions (if for no other reason than owners can't attend an email round robin).
Shouldn't concerns in relation to unit owners be sent to the strata manager who would then decide on how to respond?
This is really not the strata manager's job. They are there to facilitate the running of the building – collect levies, pay bills and advise on procedure – not manage it or owners.
If someone is making unfair or defamatory comments about you in an email group, they can sued for defamation (even if the comments are true). And the good thing about emails is that you have written evidence of what they are saying. But suing a neighbour for defamation is a bit sad, really (and bloody expensive).
It may be better to establish a protocol for your email group that prevents personal attacks, bullying and other abuses. Then the defamer can be pulled up by others in the group whenever they cross the line.
Your EC insurance probably doesn't cover someone who is defaming other owners by email so all concerned need to calm down a bit and think about how the recipients are going to feel before they hit the “send” button.
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You'll find the names and contact details of lawyers I'm happy to recommend here. But be aware that after the initial consultation, you will have to pay.
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