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Jack
I think you can safely assume no special by-law was passed. Whether or not you needed one is another matter and it may be something your OC wants to tidy up at the next AGM – eg, who's responsible for any bollards installed now and in the future, who decides what kind of bollards are allowed etc etc.
The fact is, this is one of the simplest and most effective ways of controlling rogue parking. You will always get strata whingers using “health and safety” to stop people doing what they need, and usually for no good reason.
A friend of mine tried to get approval to donate free weights (dumbells and barbells) to her building's gym – the chairwoman objected on the grounds that someone might trip over them. The real problem? She liked having the gym to herself and hated the idea that other people might want to use it at the same time she was there.
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Billen Ben said:
There are some interesting issues here:
does the OC have an obligation to reissue the notices? (if reissued they will not have a clear 7 days)The EC has an obligation under the Act to “serve” notice of a meeting. I would think that presumes a reliable means of delivery like post or email especially when there is a history of mail theft and vandalism. The difference between leaving notices in pigeon holes and sending material by post is that interfering with the Australia Post mail is (I think) a criminal offence and therefor more reliable.
You could argue that the EC has not only failed to serve all the notices to everyone entitled to get them but they will doubtless say that they have done their best and will deal with the consequences later (see below). But, seriously, this is a far from ideal situation when you have minutes of previous meetings, agendas and financial reports floating around (literally) – that's assuming the EC is fulfilling their legal obligation to provide these for the AGM.
given the pigeon holes are shared by anyone with a last name starting with the same letter can anyone really say it was removed from “my mailbox”?
People can say what they like but really, all they can honestly claim is that they never got the notice – whether it was ever there or not is another matter. However, since there is a history of theft and there's evidence of vandalism, claims that the mail was taken from their box would have to be taken seriously.
what is the OC obligation to providing a secure and private mail delivery destination (mailbox for every unit)?
As far as I know the only legal obligation is to provide a mailbox for the Owners Corporation (presumably so that notices can be “served” on it). Surely this is an issue for the owners to discuss at their AGM and then decide whether or not to pay for secure mailboxes to be installed. If they chose not to do so, then they have to work out a reliable means of delivering notices and agendas. Even if the majority say they are happy with the present arrangement, that clearly is not good enough.
In a large SP it means about 40 or 50 people will not get their notices; where does such a theft leave the outcome of an AGM when such an unusual event occurs?
Section 154 of the Act is quite specific – if due notice isn't given or someone's voting rights have been denied (for instance, if they didn't even know there was a meeting) decisions that would have been altered had they had a vote are nullified. But be clear, that 's only decisions on which their vote would have made a difference – not decisions where there was an overwhelming majority. And it doesn't nullify the meeting as a whole. This is what the Act says:
154 Order where voting rights denied or due notice of item of business not given
(1) An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:
(a) was improperly denied a vote on the motion for the resolution, or
(b) was not given due notice of the item of business in relation to which the resolution was passed.
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There's a few different possible scenarios here. If there's work being done on most units to the benefit of most owners -such as window replacement, for instance – I don't think there's any possible claim because you are collectively benefitting as well as collectively having your lives disrupted. It's swings and roundabouts, really, and don't forget you have a choice in the matter, in so far as you have a say at the Owners Corporation's general meetings (but have to abide by its decisions).
If, however, just one or two units were suffering serious disruption from work that benefitted everyone, then you would have a strong case to argue for compensation from the Owners Corporation (although if it was just a minor disruption, you would reasonably put this down to your contribution to the greater good). For major disruption, a good EC would sensibly smooth the way by looking after the affected owner or their tenants.
If the work being done was the result of an insurable accident – like a fire, explosion or storm damage – you'd be able to claim against insurance, regardless of how many units were affected.
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You're making a few assumptions there, not least that tenants who assert their rights are “freeloaders”.
As for “a good OC”? They may be but we can't assume they are because we don't know them (and you know as well as I do that there are some EC's out there who don't care what happens to other owners, let alone tenants).
We can't assume that whoever's managing the project – if anyone even is – will communicate anything to tenants. They are often the last to be informed.
We can't assume that the job will be done as per the Windowline video (Click here to view it) because we don't know the circumstances, we don't know how hard the job will be or how many windows are involved.
But look, maybe you are right and it will all be fine and there will be no problem. That would be terrific. I think we can assume that tenants would rather not move out of their home if they don't have to. No?
But Ebuffie has asked what happens if he or she has to move out while the windows are being replaced. The answer is, if you have to move out then you are entitled to some sort of compensation. That's it.
That doesn't make them a “freeloader”. If I buy or rent something that doesn't work and ask for a refund, am I a freeloader?
Realistically, worst case scenario, Ebuffie might have to spend a night or two in a hotel. If that is the case – and that may well be a big if – why should they have to pay for it? To save the landlord some money? Who's the freeloader then?
I do think it's important to enhance the standards in strata and that starts with owners recognising their responsibilites and fulfilling them.
It doesn't help to brand tenants as “freeloaders” just because they want to know their legal rights and may choose to assert them.
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Urban,
Did the contact at Fair Trading promise to indemnify you and your Owners Corporation if someone was injured while working on your common property?
There's a big difference between what's mandatory and what's good practice and this is such a grey area anyway I reckon, if anybody is doing any work in your building in any capacity, you are taking a huge risk by not complying with Occupational Health and Safety requirements.
Reading the available literature, I'm pretty sure you have been given bad advice (how unusual to get that from Fair Trading!)
I also think that if an OHS survey told your Owners Corporation to fix something and your EC decided it wasn't necessary or too expensive, and someone was then injured as a result, your EC's liability insurance would be invalidated because of negligence and the individuals who made the decision could be facing substantial PERSONAL pay-outs in damages.
Sure, there may be some strata managers who are picking up fees, some of which may be excessive, for arranging these things – but if they are getting excessive commissions for recommending necessary services from incompetent suppliers, that's about having bad strata managers, not about not needing OHS surveys.
In any cas, have a look at Mr Strata's response above about disclosure of fees.
I have heard the legal view that if, for instance, just one person is working from home in your strata block, your requirement to have an OHS surveys kicks in. And that's not the only trigger, by any means.
FYI: the Institute of Strata Title Management's submission to the National Review of Model OHS Laws in 2008, said they were concerned that Owners Corporations were being misled about their OHS responsibilities and that the exemption for OHS liabilities in private dwellings only applied to strata in very limited circumstances.
Read that submission HERE and ask yourself who's right – some phone jockey in the Fair Trading call centre or the Strata Managers' professional body and their legal advisors?
I had a feeling I had been asked this question before and I found THIS COLUMN dating back to 2008. The answer is the same. Be very careful before deciding you don't need an OHS survey, and even more so before you decide to ignore professional advice given to you as a result of one.
Now, I don't want to get this wrong so if there's any strata professional out there with a definitive opinion on this, especially if things have changed in the past three years, please let us know.
JimmyT
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Oops, my bad! I confused Workers Comp with Occupational Health and Safety surveys.
Mr Strata is right. According to Workcover NSW …
Residential bodies corporate paying Wages of $7,500 or less per annum are not required to hold a Policy under section 155AA of the Act and therefore in regards to Workers Compensation insurance are deemed to comply with Section 87(1)(a) of the Strata Schemes Management Act 2002.
And if you are now worried about your OHS commitments THEY are the ones that apply to all strata plans for the reasons stated previously.
Apologies for any confusion. Through the magic of editing , I will now go and correct my mistake.
Many thanks to Mr Strata for providing additional information.
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We can’t assume that the unit will be habitable and Ebuffie’s question is what happens if it isn't. If that’s the case, he/she is entitled to compensation.
Tenants are especially vulnerable in these situations, especially if the landlord, agent, Executive Committee or Strata Manager treat tenants as second-class citizens (as, sadly, many do).
On the question of the rent going up, there are legal restriction on when rent can and can’t be raised and how much due notice has to be given.
Even if the unit is habitable when the work is going on, then there’s still the problem of workmen turning up early in the morning and tramping through the unit.
Yes, Ebuffie should try to find out as much as they can about the scope and nature of the project but sorting this out now is better than trying to do so when the builders have already moved in. He/she should contact TenantsNSW for more specific advice.
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You should either get a full rent rebate or the cost of accommodation elsewhere. Your landlord should be able to claim on their Landlord Insurance. If they don't have any or they're not covered, then that's not your problem. But a friendly phone call to the agent or landlord should sort out how the plan to deal with this.
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Mr Strata said:
I do note under the SSMA it doesn't require an OC to have workers comp insurance, but insurances required under the Workers Compensation Act. There have been several recent changes to this legislation which in effect means that if the OC is not employing sole traders,they do not need to have WC insurance… It gets a bit more complicated than this… But something to look at.
Mr Strata is absolutely right …
Now at this point, when I first wrote this post I got confused between Workers Comp (blathering on about legal advice) and Occupational Health and Safety checks which a lot of buildings think they don't need but they do …
To avoid confusion, I've excised that bit and you can go straight to the bit where Mr Strata puts me right…
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Errr… no, not quite: my view is based on the fact that the unit holder can't just do what he or she wants with common property so they don't get to demand anything.
But, yes, it's good to have a Plan B and if the Owner wants to add this to their holding, they would have to pay even more to the Owners Corporation (and that's based on a legal precedent established in the Supreme Court) as well as pay for all the legals and for the Unit Entitlements to be reassessed.
Let's be absolutely clear, the owner in this situation has no “right” to annex Common Property and has breached Strata law and the building's by-laws by going ahead and doing what they want with the loft space.
So even if the Executive Committee was compliant and let them away with it, all it takes is for one owner to go, “hang on, we've been dudded, here!” and the whole mess would end up at the CTTT.
Maybe the owners didn't realise they couldn't just install air-con above their unit – but ignorance is no defence, not even in Strata law.
The most important thing is for the Owners Corporation to establish that the owner is responsible for the upkeep of the installation – otherwise subsequent owners can legitimately demand that the OC maintains and repairs their air-con.
The OC also needs to establish that they have access to the roof space for their own needs and that the owner pays something for a) the privilege of using common areas for their own purposes and b) the hassle they have caused.
And if they want to own the space, they had better get the cheque book out again.
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It occurs to me that you are going to need a new strata manager. Why not find a suitable candidate who is prepared to do the leg-work to help you get rid of the old one. You could employ them as a consultant and then formalise the arrangement once the other guys is out of the picture. It's a good way fro the new company to show that they are both willing and able.
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Building Insurance and Workers Comp Insurance are statutory requirements so the only reason it would be on the agenda would be to choose one insurer over another. EC insurance is optional so it has to be on the agenda for discussion and approval.
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I think you may be getting confused between Home Warranty Insurance (which only applies to new buildings three storeys high or less) and mandatory building insurance which applies to all strata buildings and is there, among other things, to replace the building if it falls down.
In your case, if the building is more than seven years old, HWI wouldn't apply in any case, and I suspect the fact that it's four storeys would rule it out too.
But your building has to be insured for it's replacement value, under the Strata Act. It's not that expensive and the bigger the building, the more owners to share the cost of the insurance.
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