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I'm not sure that the pipe in the wall ISN'T common property.
However, I would give it one last go and send the owner, agent and tenant a letter telling them that if you can't gain entry by, say seven days, you intend to enter the lot with a plumber accompanied by a strata manager or lawyer to observe that everything is done correctly, and that not only will they have to pay for the plumber but for the locksmith and the strata professional's time too. That might stir them into some sort of action.
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The difference between a by-law and a 'policy' is that the by-law has considerable legal standing and the unwritten policy has none.
If the owners are thinking of changing the by-laws – and they will need 75 percent of owners to vote in favour to do that – you need to move quickly to get your cat into the building.
The EC saying they are thinking of changing the by-laws is not grounds for refusal. It's speculative and they might not garner enough votes to do so in any case – the can't preempt a decision by the Owners Corporation.
The CTTT will look at the by-laws as they stand in the first instance but they are unpredictable when it comes to interpretation – members have been instructed over the years not to interpret by-laws but every so often one of them decides he or she has the wisdom of Solomon and the law books get thrown out of the window. What I'm saying is, right now you are in a strong position but there are no guarantees.
If I were you I'd gather together all the evidence you need to show that the cat you plan to move into the building couldn't possibly be a nuisance to anyone – and even if it were, it would be covered by other by-laws relating to noise, damage and nuisance – and make your request.
If they really are planning to ban pets, be prepared for a battle but right now, on the face of it, you will probably win.
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So we have one set of by-laws in the the Strata Act – which are optional – and six sets of (also optional) by-laws in the regulations. Not only that, in those model by-laws in the regulations for residential strata developments, there are three options.
And then, depending on which precedent you take from which jurisdiction they may or may not be legally enforceable even if you adopt them as your by-laws.
What a crock! No wonder the CTTT is going round in circles, disappearing up its own wazoo.
OK, as of now, I am not interested in theoretical arguments about what might pertain in this situation or that. I'm happy to leave that to lawyers to argue over and, hey, if it was all straightforward and obvious, then they would be out of a job.
I appreciate everybody who's trying to work all this stuff out but as of this moment, I want to read practical advice based on real experience. These hypotheticals make my head hurt and, I don't think they get us very far.
I might open a forum for legal hypotheticals but right now, a lady wants to know if she can have a cat and in that regard, I would say one thing – if you get a pet in breach of what appears to be the by-laws, be prepared for some heartbreak if it turns out that those by-laws apply.
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I'm confused.
1. To what extent do Supreme Court rulings in Queensland create a precedent for NSW strata?
2. Isn't this (below) the current 'model' by-law on pets in NSW?
16 Keeping of animals
(1) Subject to section 49 (4), an owner or occupier of a lot must not, without the approval in writing of the owners corporation, keep any animal on the lot or the common property.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.
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There are other issues, like safety, for instance. Here’s an extract from another website’s Q&A.
- I am the managing agent for a new high-rise apartment building. The tenants would like to barbecue on the balconies, roof decks, rear yards and courtyards. Does the Fire Code have any restrictions or prohibitions?
Yes. FC307.5 regulates the use of charcoal, piped natural gas, LPG and electric barbecues. You should refer to this section for complete requirements.
Standard “backyard-type” propane barbecues (using 20 pound LPG containers) are not allowed on balconies, roof decks, rear yards and courtyards of apartment buildings and other multiple dwellings.
All barbecues must be placed at least 10 feet from combustible material and combustible waste. This 10 foot separation requirement would apply to, among other things, any building of combustible construction, combustible building siding, combustible furnishings such as plastic or wood chairs and tables, and combustible decking. In addition, a garden hose attached to a water supply or a portable fire extinguisher must be nearby and readily available for use.
Which State has these laws? Actually, nowhere in Australia. This is based on the New York Fire Code – but, hey, what would they know about high-rise buildings?
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Sam Goldwyn famously said verbal agreements aren't worth the paper they're printed on. But then he didn't live in Strata in NSW.
Sounds to me like Mr Strata is right about the visual aspect of the building being the key to having these removed. The question of cost is interesting … if they were built into common property, with or without permission, then the OC would have to foot the bill now that the original installers have moved on. But is an open window (which is how these units have been installed) common property? I'll leave the answer to than to those wiser than I.
Personally, I would be looking at this as a big picture issue – you want your building to look better from the outside and you need, therefore, to establish a standard for air con installation. Once you've done that, I would think it's perfectly reasonable for the OC to pay for the old air con's removal and let the individual owners pay for their own compliant installation.
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Ulverstone said: I very much wanted to be elected on the EC at our recent AGM, as we have a few new owners and I felt it maybe be possible to move forward in a civilised manner, as the building is in need of upgrading.
Before tenants were asked to nominate, the chair accepted 5 proxy nominations, 3 from investors who have never been to a meeting (nor will) and 2 from very elderly and ill tenants who do not leave their apartments.
Of course all of these votes are held by the above mentioned tenant and all of which are now on the EC.
Just to clarify, I assume by “tenant” you mean resident-owner (please let us know if that’s not the case). Obviously this is a very dodgy procedure that has been undertaken here and I’m betting there are a few holes in the process that may give you the opportunity to fix things.
Firstly, what’s supposed to happen is that the AGM votes on the number of people that will be on the EC (to a maximum of nine), then calls for nominations. If the number of nominations exceeds the number of places, then a vote is taken to elect the members. If that didn’t happen you might have a case to go to Fair trading and the CTTT to ask for a fresh election (or just gather 25 percent of votes in the building to call for a new general meeting).
The first thing I would want to do is to view the proxy forms to make sure they were valid. Somebody standing up and saying I have proxies from so-and-so is not enough. I’d also check to see that joint owners of the one property weren’t nominating each other – that is forbidden by the Strata Act.
If this owner is ‘proxy farming’ using a scare campaign, your problem is how to turn people’s thinking around. Bear in mind that most people in strata don’t want to know about internal political battles and by challenging this person, you are probably confirming some of the things that he is telling people about “outsiders”.
The one thing that will change people’s thinking, however, is if not changing is going to cost them money. Is the way the EC is being run damaging the value of the building? That can be an effective argument … except to people who have no intention of selling. Are the finances out of control? Is negligence creating a problem that, if left too long, could result in special levies being imposed.
Conversely, if you want to make changes that will, for interest, mean a rise in levies, you are going to have an uphill struggle.
You could probably run a case at the CTTT that the building is not being run in the best interests of the majority of owners but that’s a bit of a lottery and could be very divisive.
Probably what you need to do is play a “long game”. Aim for the next AGM, do as much work around the building as you can, getting to know the proxy-givers and other owners. Then be prepared to go to the next AGM and demand that things are done properly, taking a couple of allies with you.
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Ilkin is the authoritative book although some might find it a little dry and legalistic. When in doubt, I sneak off to the Strataman website which isn't interactive (like this one) but has good, nuts and bolts answers to basic questions in a language that even dunderheads like me can understand.
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Smoke-free buildings already exist and they're spreading. But what I haven't seen yet is an ad for an apartment in a non-smoking building. Surely there's someone out there with the cojones to ingore the 17 percent of the population addicted to the dreaded weed and proclaim their clean credentials.
Or maybe it's just that once people get into a smoke-free block, they don't want to leave.
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I think you have every right to contact your agent and ask them how the negotiations are progressing and what is their time frame for fixing this. If it's a couple of weeks away, you need to tell them that's just not acceptable. This is a serious issue and if they can't provide you with a safe and secure home, you want to be able to break your lease without penalty and find somewhere else that is safe. Contact TenantsNSW for more advice.
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Whale said:
That the fan is actually a “Lot Owners' Fixture” on our Plan, that the cost of its replacement was over $600, and that the installation is of a very, very poor standard is not entirely relevant to my issue, but all are complications!
I reckon it is relevant. If it says on the planit's a lot owner's fixture, then surely it's up to them to fix it. As for your approach, I think you're being too accommodating. They have either got the wrong end of the stick or it's a try-on but unless there's a special resolution whereby the OC has assumed responsibility for the fan, then it's not the OC's problem. And you should perhaps be asking them to tidy up the installation because they have damaged common property.
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OK, I have been told that it’s only a matter of time before someone with the time and money takes their OC to court over smoking, using Environmental Health laws.
Meanwhile, there is this in the Strata Act:
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).
If you can show that smoking is a “nuisance” and not just annoying, and you can persuade the Supreme Court that it merits their attention (because the CTTT won’t award costs or damages) then the legislation is there for you.
There has been a case where residents were ordered to stop smoking by a CTTT ruling (because their smoke was infiltrating neighbouring apartments) but that doesn’t carry anything like the weight of a Supreme Court precedent.
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