[Jimmy-T]

Apparently Fair Trading are going to be issuing a few more “clarifications and improvements” to strata laws and regulations over the next few months – having just given developers a nice pre-Christmas present in reducing the time they can be held accountable for shoddy work from not quite long enough to negligible.

Maybe strata parking will be on the agenda. I'm off to catch the next flying pig to Cloud Cuckoo Land.

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[Jimmy-T]

You would be wise to get a proper strata legal search (including minutes of meetings to see if there are upcoming problems and ongoing issues between neighbours).  This isn't a bad thing – buy a house in a street and you have no idea how your neighbours are behaving.

You will want a proper building survey done – just as you would if you were buying a house.  Don't depend on the Owners Corporation to have fixed everything, even if they are legally obliged to do so.

I was just hearing today about a guy who skipped the building survey only to discover the previous owners had discovered concrete cancer and quietly sold up before the issue was ever minuted.  A building inspector would have picked up on that immediately.

How much does it cost?  How long is a piece of string and how much value do you place on peace of mind?

Apart from the structural stuff and the EC minutes, your search professionals should make sure there is enough in the sinking fund and there are no big ticket bills on the horizon. They might also check for lifestyle issues that are impending – if you have a dog and a building is about to go pet-free, you need to know about it.

And you want to look at the levies and ask yourself how you will be placed in five years when they have gone up 25 percent (or wherever CPI takes them)  but your income may even have gone down.  If that's an issue, look for a building with fewer facilities and therefore lower levies.

Good luck and stop worrying – this could turn out to be the best move you ever made.

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[Jimmy-T]

I don’t know if they are strictly legal and I suspect that they aren’t (and if they aren’t, then the by-law has no standing since you can’t create a by-law that infringes another law).

However, if you were to word the by-law that allowed the concierge to, say, cut off the electricity supply if there was a concern about fire safety in any unit to which they couldn’t gain access, that might be different matter.  My legal friends may advise on this but as it stands you could be on shaky ground, legally.

But seriously, it sounds like this pig of an owner and his spoilt brat son need a reality check. I assume you have already:
a) Approved a motion at an EC meeting to issue a Notice To Comply.  (If not, you'll find the official NTC form here)

b) taken this to Fair Trading for meditation – a prerequisite for CTTT action (Form).

c) Pursued this through the CTTT for enforcement of your Notices to Comply.

If you have tried all these and they have failed, your next step should be to gather evidence and go to your District Court and ask for a noise abatement order to be imposed on both the son and the father (as the ‘tenant’ and the owner).

If that succeeds, any further breaches would be a criminal offence as they would technically be a contempt of court and the offenders could be arrested. Have a look at this link on how to get a noise abatement order, and take it from there.

In the real world, there are plenty of things that go on that aren’t strictly legal (but bloody effective).  For instance, if the other owners had an audit of electronic keys and one owner was mysteriously left out (because the notices were slid under his door rather than posted, for example) and he later found out he couldn’t access the building and concierges were under strict instructions not to allow access to anyone who couldn’t prove residency … well that would be a terrible thing.

But seriously, go back to the law, gather overwhelming evidence that the idiot father and the brat son are flaunting any reasonable standards of decent behaviour and take them all the way (and don’t forget to collect costs and damages if you can get them – you won't at the CTTT but you could at proper courts).

I can think of half a dozen strata lawyers who would love to take this case on.  And with a reasonable chance of getting a result and costs – why not go for it? 

By the way, this is a process that you have to begin now regardless of when the most recent breach occurred. Party season is just starting so I would get on to it right away.

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[Jimmy-T]

Got this this morning from our friends at Bannerman Lawyers:

The Home Building Amendment Bill 2011 discussed in our urgent 14 October 2011 update has been rushed through Parliament. We were advised that 9 November 2011 was the earliest it would be passed. However it was passed without amendment today.

 Some of the worst aspects of the Bill will apply as soon as the Governor gives assent to the Bill. Assent is normally given within about a week. However, all owners corporations should be prepared for the possibility that the assent of the Bill will also be rushed through.

This just shows that the new government is in exactly the same place as the old government when it comes to strata – firmly in the pockets of developers.  The haste with which this has been cobbled together and pushed through parliament is unseemly, to say the least. 

And this on the same day that figures are released showing more families are giving up home owning and returning to rentals (STORY HERE)  – some to Housing Commission or rental assistance.

I may be getting jaded but I can't help thinking they have been lured into the housing market where, we are told, luxury is affordable (strata units are the first choice for first-time homeowners).  Then they find it's not as affordable as they were led to believe  – levies? WTF are levies? – and have to sell out, often at a loss). 

And thus, having had their meagre savings deftly removed from their hip pockets, they are forced to join the rental queues and seek housing assistance while they pay off what's left of their mortgage.

Well done Fair Trading Minister Anthony Roberts – you make Virginia Judge look like strata's Che Guevara.

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[Jimmy-T]

If this was in NSW I'd be recommending Integrated Building Consultants (IBC) because they cover all the bases and seem to be a decent bunch and good operators.  Surely there's something similar up north.

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[Jimmy-T]

Cathy

Given that there is no clear obligation for OCs to enforce their by-laws, where does that leave an EC that chooses to refuse permission for a net – or order one to be removed?

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[Jimmy-T]

deliria1 said:

The plan is to have the entire terrace (cat section included), “designed” sympathetically, by a landscape design company so that the mesh is as unobtrusive as possible, with lots of planting etc to help disguise it.
I am in NSW and wonder how likely it will be that the Body Coporate will refuse this?

Also, as this is a new development & I would like to do this as soon as I move in, is it the developer I approach? Are they in essence the 'Body Corporate' until the owners move in & take over?

The developer is, to all intents and purposes, the Owners Corporation in the initial period up to the point when the first AGM is held.  However, they are severely restricted in what they can and can't do in that period as regard contracts and by-laws.  They can't, for instance, “make, amend or repeal a by-law in such a manner that a right is conferred or an obligation is imposed on one or more, but not all, owners or in respect of one or more, but not all, lots.”

Any proposed contracts and by-laws have to be confirmed (or not) at the first AGM.

So, in short, sooner or later you are going to have to sit down with your new neighbours and get their approval.  Just to give you an example, I once bought into a building which was pet friendly according to the model by-laws but the newly-elected chairman tried to push through a by-law banning pets at the first AGM.  He failed but the ensuing battle ripped the building apart (and led, indirectly to the creation of Flat Chat).

So I would scan the proposed by-laws and see if there's anything you might fall foul of.  The one that springs to mind is that the appearance of your terrace may have to be in keeping with the rest of the building.  If you don't have that or can find a way around it, you could be OK.

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[Jimmy-T]

There's a debate going on over HERE about 'safety nets' to prevent children falling off balconies.  I wonder if pet lovers would have an opinion.

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[Jimmy-T]

Shop Owner said:

The discussion here is centred on an owner wanting a by law in his favour.

But what happens if an owner does not want a by law for special or exclusive use of common property and the OC wants to force maintenace repair and upkeep costs onto that owner? 

The OC would be exceptionally dim to allow changes to common property without a properly constituted by-law that shifted responsibility for its upkeep to the owner who was benefitting from the change.

Can the EC or OC pass a by law conferring exclusive use of a part of common property on that owner without the written agreement and approval of that owner?

No they can't – but then, without the owner's approval,  they simply wouldn't (and shouldn't ) give permission for the changes.

This section refers to the 'Proprietor' – is that an owner – are they the same thing?

Yes

Please don't use this in any print articles and protect identifiers.

We do our best not to identify correspondents. It's a shame that you want free advice that no one else should get to read. Maybe you should talk to a lawyer next time.

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[Jimmy-T]

FlatChatFan said:

There will be many products potentially useful for strata residents, but I would hate this forum to turn into a series of advertisements for those products.

I agree and that’s why I spare you all from the myriad companies who try to sneak in free advertising by fair means and foul. 

I think this is an interesting issue worthy of discussion. Posting the link to the product was the easiest way to allow Flatchatters to see it so they can make an informed judgement.

Because it’s an interesting dilemma for strata owners, I will also be running this as my main Flat Chat column this weekend. Trust me, the Domain editor would be all over me like a cheap suit if he thought I was giving away free advertising.

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[Jimmy-T]

Ach

I repeat my previous advice which is to get the Executive Committee to talk to a strata lawyer (at their expense).

Meanwhile, send them a letter telling them that you have been advised that this is not your responsibility but (if you wish) you will consider letting them move the air-con unit at their expense.

It actually is clear-cut, according to the advice I have had on other issues. So a polite letter telling them they’ve got their facts wrong is quite in order.

They wouldn’t be the first EC or strata manager to fall foul of this .  Logic and commonsense would suggest they are right but those two characters aren’t around too often in strata matters.

And don’t get bogged down in nitpicking about written complaints. The law seems to be on your side and that gives you a position of strength from which to negotiate and reach a happy compromise.

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[Jimmy-T]

Dech

I'll put that question back to you and ask where it says in the Act that unapproved alterations by a previous owner are the responsibility of the new owner.  What the Act does say is that the Owners Corporation has an absolute responsibility to maintain and repair common property and everything else flows from that.

Ignorance is no defence in common law and neither, it seems, is it in strata law.  'm not saying it's right or fair, and maybe there should be an opportunity to hook people retrospectively for damage done to CP while they owned the property. But it is what it is.

In this case, the air-con unit must have been visible for years and its installation can't have gone unnoticed.  I'd be intereted to see what happened if an OC did pursue a previous owners over damage done in the past.

I have a feeling that you do have to declare that you don't know of any unauthorised work when you sign a sales contract.  But I'd imagine the defence would be along the lines of 'the former chairman (RIP) said it was OK and it's been there for years anyway'.

Your comment about having a clear record of work done is absolutely right.  A paper trail will be required at some point in a legal action and in smaller blocks, especially, owners need to be on alert when a builder's ute suddenly appears in the driveway

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[Jimmy-T]

Whale said:

There's no requirement for you to compensate other Owners or your O/C, but it is customary for you as the Proponent to cover the O/C's costs to convene the General Meeting (unless it's the scheduled AGM), and to pay its costs to draft and Register the Exclusive Use By-Law on the Strata Title.

There's no requirement in the Act but your neighbours might say now or in the future, “what's in it for us”?  In other words, the 'requirement' might simply be to keep them happy so you get the 75 percent of the votes you need to pass this.

And there was a case a few years ago where a majority owner gave himself permission to annex the roof pace of his building without compensating the other owners. That was deemed a 'fraud against the minority' and he was forced to pay his neighbours for using their common property to massively enhance the value of his.

The formula established then was the that you pay the Owners Corporation the difference between the value of the home as is and what it will be worth as improved, minus the costs of building the deck (including legals).

It may be minimal, it may not.  But it's something you should at least look at to keep your neighbours onside.

That aside, Whale's explanation of the process is spot on.

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[Jimmy-T]

A few points here. Firstly, I would not go into battle based on anything anyone from Fair Trading told me over the phone.  They can only reliably tell what you can and can't do based on the by-laws of your building, not the 'model' by-laws on their screens.  The fact that many of their operatives don't even realise this themselves is enough reason to take their advice with a massive pinch of salt.

Which brings me to point 2 – what does it say in your by-laws?  If there are items like keeping the appearance of the car park tidy etc etc, or not storing goods in car spaces, then your EC has a case.   Whatever it says, the Notice to Comply has to state which by-law is being breached. If no by-law is being breached then they have no case. Again – this is YOUR by-laws: not the model by-laws or the ones you think you might have.  It's the by-laws held by your strata manager and secretary and of which you should have an up-to-date copy.

Point 3 – just because 'everybody else is doing it' is not a reason to breach by-laws.  If you and the majority of people in your building think there should be unfettered use of parking spaces for storing goods but your by-laws don't allow that then the time to make that point is at an AGM (or EGM held to discuss the issue) where you can vote to change the by-laws. 

Notions of what is acceptable or otherwise regarding the neatness of stored goods is purely subjective and therefor meaningless unless it is specified in a by-law.

The question of the chairman's car is a different issue entirely as it sounds like he is (partially, at least) parking on common property, by any objective measure, and that is likely to be forbidden in the by-laws.

If the fire safety authorities are genuinely concerned then they will issue a fire order to which you and all owners must comply.

Also, being 'breached' for one issue isn't invalidated because you have a complaint, however valid,  about another issue.  If there's a level of hypocrisy at play in your EC, then the time to raise that is at an AGM when the EC is up for election.

There is a solution to all this. Early in the history of my building they passed a by-law requiring goods to be stored on specially designed boxes that sit off the ground so you can park the nose of your car under them (the company is called Box Thing but there are other brands).  It's a compromise solution that gives everyone a lot more storage, keeps the garage neat, avoid fire and vermin problems and isn't too expensive.

I would suggest your OC approves a couple of options and sets a date, say six months hence, by which time everyone either installs one or clears their stuff from their car spaces – problem solved.

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[Jimmy-T]

Two issues here, going back to your link to Simone from Teys Lawyers, she quite clearly says that any enforcement of by-laws has to be initiated by a written complaint.  Whether that includes, for instance, a minuted issue raised at an Executive Committee meeting, I'm not sure. However, I do know that the EC has to raise, discuss and vote on a Notice To Comply before it proceeds (or have delegated those powers to their strata manager).

More significantly in your case, the EC has missed the boat on this air-con issue.  They had their opportunity to enforce their by-laws when the original owner installed the air-con. The fact that they didn't and the installer has sold up and moved on means the air-con is their problem, not yours.  Any argument they may have that this was a previous EC is irrelevant.

This is not a case of caveat emptor (buyer beware) as they will probably argue, but “EC attend to your obligation to maintain common property” (no idea what the Latin for that is).

So sit tight and tell them to talk to their lawyers about this.  But be prepared, as a good strata citizen, to let them move the air-con to an acceptable location at their expense but with your undertaking to look after its ongoing maintenance.

This does seem a bit harsh on all the other owners who will contribute to making good the previous EC's errors but it's an object lesson in why changes to common property should never be allowed to go through on a nod and a wink.

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