[Jimmy-T]

Unexpected Leigh said

Come on Jimmy, lawyers and strata manager experts. What hope is there? What can be done?

OK, Leigh. If you look a few posts up, there's an reference to a by-law that, I'm assured, takes care of all these problems, including retrospectively, according to the lawyer who drafted it.

Asking why the CTTT didn't do the right thing is like asking “how long is a piece of string?”  The CTTT is a deeply flawed organisation that has been moving steadily away from its core principles, which were to provide a simple, fair and low-cost forum for the hearing and adjudication of strata disputes. 

Today is the last day for submissions to the State Government on what should be done with it in the great wash-up of tribunals that's a-coming.

Personally, I'd scrap the waste of time that is mediation and replace it with a three person committee of a strata manager, a strata lawyer and a former EC office-bearer and then if the loser of the case wants to appeal, there is a fixed set of costs that they have to pay should their appeal fail.

But this case is a very good example of how the 'nod and a wink' form of EC management only really helps the selfish, greedy and lazy at the expense of people who are often sneered at for trying to do things properly.

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[Jimmy-T]

Don't wait for them to volunteer.  Send them a Bill with 30 days to pay.

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[Jimmy-T]

The OC should pay for a surveyor to work out what the new UEs should be and then, if you can get unanimous agreement, they will explain how you register this so you can redistribute levies on that basis.  If you don't have unanimous agreement, you can apply to the CTTT for a judgement adjusting the levies accordingly.
Just be aware that there is a point at which the expense of all the surveys and  legals etc outweighs the benefits of redistributing the UEs. 
A more elegant solution, if the roof space was common property, may be to lease it to the owners in way that doesn't interfere with their rights or their ability to sell but recognises the added value they have in their property.  That money could then go into the general fund and reduce your levies accordingly.

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[Jimmy-T]

The OC should pay for a surveyor to work out what the new UIs should be and then, if you can get unanimous agreement, they will explain how you register this so you can redistribute levies on that basis.  If you don't have unanimous agreement, you can apply to the CTTT for a judgement adjusting the levies accordingly.

Just be aware that there is a point at which the expense of all the surveys and  legals etc outweighs the benefits of redistributing the UEs. 

A more elegant solution, if the roof spave was common property, may be to lease it to the owners in way that doesn't interfere with their rights or their ability to sell but recognises the added value they have in their peroperty.  That money could then go into the general fund and reduce your levies accordingly.

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[Jimmy-T]

This sounds very like a criminal case of gaining financial benefit by deception (or whatever the legal jargon is).

You need to talk to a specialist strata lawyer immediately about getting the required ruling from the CTTT to stop this planning procedure, get all your documents back from the strata manager and get the police involved.

You're right.  This is serious.  And once the strata manager has been charged and convicted you can broadcast their name far and wide with impunity … but not before.

Call a lawyer now.

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[Jimmy-T]

If they are on a fixed term lease they only need to give 30 days notice that the lease will not be renewed.  If they are on a 'periodic' agreement or what used to be called a continuing agreement, they have to be given 90 days notice to quit. 

However, if they have breached the agreement (and a breach of by-laws is a breach of a leasing agreement) they only have to give 14 days notice.

If you are prepared to put up with this for another 3 months, I'd be letting the agents know that if they lease the apartment of another bunch of similar ratbags, you and your neighbours will run the agents, the tenants and the landlords through the CTTT and the courts without a moment's hesitation.

And don't forget your EC's gutlessness when it comes to election time at your AGM.

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[Jimmy-T]

The closest correlation you will get to your unit entitlements (the basis on which your levies are calculated) is the apartment's value so views and aspect do come into it, along with size and amenity.  That's why apartments higher up the building usually have higher UEs and therefore highers levies.  If it's any consolation, you also get a higher value vote in a “poll” at a general meeting. 

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[Jimmy-T]

For those who are wondering, this is where to find out what a Solarventi is.

I can think of a dozen reasons why this might not work for strata developments but it could be a goer for townhouses.

I'd never heard of such a thing before so obviously I'm neither recommending or endorsing it.  Interesting concept, though

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[Jimmy-T]

Our OC recently passed a by-law that said all unapproved changes to common property were the responsibility of the owner who did it or any subsequent owners of that property. The lawyers assured us that this is legal and enforceable.  If so, it's worth adding to your by-laws before anyone gets a chance to remodel at your expense.

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[Jimmy-T]

Get in touch with the Owners Corporation Network HERE.  They have lots of members with years of experience and they also are an increasingly influential voice in Government policy making.

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[Jimmy-T]

StrataPirate said:

Jimmy, is the online training course in the members section? I couldn't find it.

The direct link to the training course is HERE. But you will have to register (for free) to use it.

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[Jimmy-T]

The OC is liable in the first instance because of its legal duty to maintain and repair common property (even though they are doing their best to effect this). They then need to claim against the insurer.  Look at it this way, if the insurer refuses to pay, the OC still has to stump up so they may as well pay now and claim later.  Better to keep relations on a cordial footing and do the right thing rather than find excuses so they don't have to dip into their funds. And don't forget, oit's the home owner who's really suffering.

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[Jimmy-T]

You would need to inform everyone at the meeting that you were doing so and, for safety’s sake, get the EC to agree.

You can always challenge the minutes at the next meeting, of course, because each meeting has to start with approval of the previous minutes.

If that doesn’t work, write directly to owners telling them where the minutes are wrong.

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[Jimmy-T]

First of all, the EC can take action directly against the tenants, via Fair Trading and the Consumer, Trader and Tenancy Tribunal, regardless of the landlord.  They will need to hold a meeting at which the issues and decision to send a Notice To Comply is minuted.  You can download the official Notice To Comply form HERE.

If, for instance, it's difficult to nail down who the tenant is, the EC can also take action against the owner for failing to manage their tenants properly (and a warning that they might do so may be all it takes as Clive2000 outlined above).

If the EC doesn't want to get involved (and if so, why are they even in the job?), you and your neighbours can go directly to Fair Trading (Tel. 13 32 20) to get this problem sorted. You can download an application form for mediation (mandatory before you can take any further action) HERE.

If mediation fails, you can then apply for an adjudication at the CTTT.  You can download the form from HERE.

And you can go to your district court and get a Noise Abatement Order issued against the tenants (and landlord, if need be). You can find out more about Noise Abatement Orders HERE.

But really, a strongly worded letter from the EC to the landlord telling them to either shut their tenants up or kick them out (they are already in breach of their tenancy agreement by being in breach of by-laws), and outlining the options open to the EC to pursue this may be enough to get a result.

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[Jimmy-T]

FlatChatFan – I don't think BB is saying this member adjudicates on actions brought against him; just that the fact that he is a member of the CTTT means that he can't lose (BB will correct me if I'm wrong).

Regarding tenure of the CTTT here is a recent response from them to exactly that question:

Members of the CTTT are appointed by the Governor of NSW for a term of up to 5 years.  Under the CTTT Act members are eligible for reappointment.  There are presently 80 members of the CTTT located throughout NSW.

A number of appointments to the Tribunal generally expire at the same time.  For example, the terms of 40 or so members expire at the end of 2011.  An advertisement seeking applications from suitable candidates was placed in the press in August 2011.  Anybody, including members who wish to be reappointed for a further term, was required to make a written application.  Appointments are based on merit and will be made following an assessment and interview process involving all candidates.  This process is not yet concluded.

A variety of selection processes have been employed by former Ministers in earlier years.  All have involved an advertisement, written application and assessment process. 

The last large scale recruitment exercise was undertaken in 2007.  At that time 23 existing members were not reappointed and 11 new appointments were made.  Smaller exercises were undertaken in 2009 and 2010.  On each occasion a number of members were not reappointed and new appointments were made as a result of the selection process.

This question was asked after a very prominent and highly qualified  member of the strata community who had applied to become a Member told me he was informed at the interview that the CTTT operates an unofficial 'tip and fill' process whereby existing members only have to reapply as a formality to stay in their jobs.  Nothing in the above contradicts that – there certainly seems to be no rigorous performance review as part of the process.

On the question of the serial complainer, there are many ways to resolve an issue of bad management of a strata scheme.  Firstly, all you have to do is convince the majority of your neighbours that this is the case.  They, after all, can see at first hand how well or badly the scheme is being run. I know it's never as simple as making a compelling argument but democracy doesn't get any more grass roots than at strata level. If you can convince enough of your fellow owners that there is a systemic problem in your strata plan, they can vote to fix it at the AGM. If they don't care then the problem clearly isn't that bad in their eyes.

Secondly, there is appeal to a higher Court.  These days in Strata, the first resort for appeals is the District Court where any obvious misinterpretations of the law can be heard and remedied.  It's more expensive than running another case through the CTTT – one reason serial complainers don't go there.

The worst serial complainers use up huge amounts of their strata plans' and the CTTT's resources by running variations on cases they have already lost, which have to be treated as new cases. 

Their search for 'justice' ties up EC volunteers time and energy not to mention the costs if a strata manager or lawyer is involved (and one or the other probably will be).  When one tilt at the windmill fails, they come up with another variation and the process starts again – mediation, adjudication, hearing, appeal. 

If the serial complainer happens to be a pensioner, the cost to them is negligible and if they literally have nothing better to do with their time it takes on all the hallmarks of a hobby.

What they are doing is perfectly legal but it's clogging up a CTTT system that's already struggling while undermining their own communities.  They also encourage CTTT members to feel very superior to ordinary strata residents (not that they need much encouragement).

We have to balance the right to a fair result with all strata owners' rights to choose how imperfect their world is.  Yes, there is proxy stacking, a high level of ignorance of the law and, even worse, apathy that all mitigate against correcting flaws at the individual strata plan level.

But there has to be a cut-off point where the CTTT can say that one individual taking case after case against their strata plan has to stop, for everyone's sake.

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