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Yes, I don't think they were office buildings. There were two Land and Environment Court judgments in cases between Oaks and Sydney City on March 1 last year. In one, Oaks had an appeal against a planning application to change one of its buildings from residential to short-term lets refused. In the other, they were allowed a trial period of two years for mixed residential/sort-term rental use in the city, despite City of Sydney objections. Click on those links to read the judgments in full.
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Let's not be coy about this – fees for letters and late payments are, to some extent, de facto fines (except ECs can't impose fines).
The unwritten decision not to collect debts may be OK but that doesn't mean those debts aren't accruing interest. The two relevant sections of the Act seem to allow some leeway but not much.
79 Interest and discounts on contributions
(1) Any contribution levied by an owners corporation becomes due and payable to the owners corporation in accordance with the decision of the owners corporation to make the levy.
(2) A contribution, if not paid at the end of one month after it becomes due and payable, bears until paid simple interest at an annual rate of 10 per cent or, if the regulations provide for another rate, that other rate.
(3) However, an owners corporation may by special resolution determine (either generally or in a particular case) that a contribution is to bear no interest.
(4) An owners corporation may, by special resolution, determine (either generally or in a particular case) that a person may pay 10 per cent less of a contribution levied if the person pays the contribution before the date on which it becomes due and payable.
80 How does an owners corporation recover unpaid contributions and interest?
(1) An owners corporation may recover as a debt a contribution not paid at the end of one month after it becomes due and payable, together with any interest payable and the expenses of the owners corporation incurred in recovering those amounts.
(2) Interest paid or recovered forms part of the fund to which the relevant contribution belongs.
I may be wrong but it reads to me like you can collectively decide not to pursue debts (or not decide to collect them) but if you want to waive interest payments it has to be by special resolution.
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realtor said:
This is now getting enforced.. Also getting enforced as they move towards kicking owner occupiers out of serviced apartments..
Just to reinforce that point, a huge tower block in the city was never meant to be residential – it was always zoned as short-term lets. Now new management has moved in and is apparently kicking long-term residents out (one might assume, at least in part, to boost their letting business) with council backing. We can't have it both ways.
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I have to agree with Get It Right. Much as I hate the way corporatised short -term lets have destroyed some residential buildings, the problem is with the law, not with the lawyers. Sensible strata laws and councils who gave a tuppeny damn about strata residents would sort this problem out overnight. In fact, 80 percent of these issues would be fixed by proper zoning of apartment blocks … and there would still be room for short-term lets. The big problem is is the holiday rental agencies that want all the facilities and security of residential buildings but do nothing to protect the amenity that enhances the value and desirability of their properties.
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Errr … no, I wouldn't recommend doing that. Must learn how to use those smiley faces when I'm being facetious.
However, I wouldn't hesitate, if push came to shove, to explain that employing a plumber might be an option open to you. I'm a great believer that most sensible people, faced with a situation where they are likely to lose and all it takes is for them to be reasonable, will take the line of least resistance and do the right thing (however much it irks them).
The problem is that your time and energy is being taken up by their intransigence so a quick result is a good result. All they need to know is that a) they are in the wrong and b) you are serious and thing should move along nicely.
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They WOULD need the by-law if you told them to either agree to a reasonable by-law covering repairs, maintenance and liability or be ordered to get their water tank off your (common) property. You don't have to play hard ball but they should realise that you can do so if they don't come to the party. And never mind the CTTT – a plumber with a pipe wrench would get a more immediate and reliable response. They are in the wrong – let them take you to the CTTT when you remove their hot water tank.
There's a difference between shared property and common property and they have no right to put anything in a common property space without permission.
If you allow them to leave the tank there without the requisite special resolutions, when they sell, the water tank's maintenance, repairs and other liabilities will become the Owner's Corporation's responsibility, not the new owners'. For that reason alone, you have a very good chance of success at the CTTT.
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Pass a by-law that allows an annual “audit” of owners’ cars and therefore allowed to park in the car park. Or a by-law allowing you to issue parking permits. In both cases, the by-law should allow the OC to clamp cars parked illegally by owners and charge an administration fee for the clamping and the removal of the clamp. Don’t know how legal this is but it will put a good scare into them.
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Mr Strata is right (as is Struggler, for that matter). Talk this through and if that fails, ask for the reasons to be given to you in writing. That can only help in any future dispute – even if they refuse, their conduct will be taklen into consideration if the issue goes to the CTTT.
A CTTT adjudicator can order the OC to approve an application if they think it has been uinreasonably denied. And while Mr or Mrs 25 percent can block a special resolution, they don't have the voting power to demand an appeal if the OC loses at the CTTT.
Also, it seems like you can go ahead and get an order from the Adjudicator retrospectively but you would have to be pretty sure of your ground before you did that (and I for one would not advise it).
This, I think, is the relevant clause of the Act.
Division 2 Orders relating to property
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
(3) An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.
(4) An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.
(5) If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.
(6) In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.
(7) An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner.
So if you hit a brick wall again, take this to Fair Trading for mediation, then to the CTTT if need be.
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Well, the law seems pretty clear on this:
71What money can be paid out of the sinking fund?
(2) … an owners corporation may disburse money by transfer from its sinking fund to its administrative fund or by meeting from its sinking fund expenditure that should have been met from its administrative fund if the owners corporation complies with subsection (3).
(3) The owners corporation must, not later than 3 months after the disbursement, make a determination under section 76 (1) of an amount sufficient to recoup the amount of the disbursement.
Doesn't seem to be much room for discussion there. But my major concern would be what kind of state your sinking fund is in, relative to your obligatory 10-year plan.
There's often a bit of give and take in moving money to and from funds but the problems arise when you discover it's been masking a fundamental shortfall to service short-term needs.
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Never having done it myself, I can't be too authoritative, but I would say an A4 ring binder with indexed separators (and an identical copy for yourself, of course) would be the way to go.
Anything that can't be hole-punched and filed that way can be slipped into a clear plastic 'pocket' that has ring binder holes on it. But however you do it, make it well organised and easily accessible.
Even more importantly, make sure you have every shred of paper that might be referred to. For instance, if you are pursuing a “Notice To Comply on behalf of your Executive Committee, make sure you have the minutes of the meeting at which it was decided to issue the NTC or the Member is likely to throw the case out. Have a look HERE to see what I mean.
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There's a simple rule of thumb here – banning the use of sunshine and air to dry clean washing on balconies is very Australian, banning filthy, stinking, smoke-belching barbecues on balconies is unAustralian.
Leaning on your balcony balustrade, drinking, cursing, smoking, dropping cigarette ash on all below is OK. But if, in leaning over, you glimpse so much as a corner of a newly laundered bedsheet, call the StrataCops!
It's really that simple.
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I wonder, though, if individual owners can claim a share of depreciation since, I think, if the OC makes any income (from the rental of common property or suchlike) that is supposed to be apportioned back to the individual owners as taxable income.
This was the case a few years ago and I haven't heard anywhere that it has changed so that might be a way of offsetting taxes.
I hasten to add, I haven't heard of any building that actually does this but if your block, say, rents roof space to telecom towers, owners may be up for a tax bill.
And when you think about it, claiming depreciation could open up a whole can of taxation worms. be careful what you wish for …
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Yes, the whole 'the law has changed” thing was a furphy – but not as much as the “you could go to jail for drying your laundry on your balcony” farce, instigated by a fellow journalist of estimable talent.
And Mr Strata is right – your by-laws don't change unless you change them, regardless of what the current “model” by-laws are.
Me, I think I was too influenced by those Italian movies of the 60s. Every time I see clean white laundry on a balcony, I expect Sophia Loren to appear.
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I know I'm going to get hammered for this, but it's not as if we're dangling our smalls on bamboo poles off our balconies. I find the sight of huge buildings that I know house hundreds of tumble dryers more offensive that a few flapping teeshirts.
Maybe we need to go back to the old days when every unit was allocated a drying day, just to exercise some control. meanwhile, I reckon washing lines on apartment roofs would probably be a more efficient use of solar and wind power than all these high tech solar cell arrays and windmills.
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