[Jimmy-T]

As long as you’re not nominating yourself or anyone else at the AGM, go for it. This is exactly the kind of tenant I was talking about.

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[Jimmy-T]

Parking on Common Property is a no-no.  Don't go there.  But your neighbour is treating you unfairly.  Now, stand back while our legal friends tearmy opinion to pieces but shouldn't you just hit your neighbour with a bill for the damage since you know that your car was damaged by someone who was there as her “guest” or contractor.  Perhaps explaining to her that it's her responsibility and if she won't give up the oven guy, then she has to pay, might make her a little more forthcoming with his name. 

 

That said, don't go in with all guns blazing – promise you won't park on Common Property (whch you shouldn't anyway) if she does the right thing regarding the damage to your car.  Let Peace break out or you face years of sniping and nastiness.  As Churchill said, “Jaw-jaw is better than war-war …”

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[Jimmy-T]

The simple answer is yes, as far as i know, anyone who is a legitimate member of the EC can be elected to to any office within the EC. But don’t forget, this election is by other EC members on a mone-person, one vote basis and can be rescinded by a simple majority at an EC meeting. In other words whether they are a tenant or an absentee landlord, they are only there with the approval firstly of the Owners whi either elected them or didn’t put a candidate up against them, and then by the majority approval of the other EC members.

On a general point, I know long-term tenants who have contributed more to the general well-being of buildings that, for instance, investor owners who don’t give a damn what goes on as long as their unit is always tenanted.

On the other hand, I heard of an autocratic chairman who would not permit any opinions contrary to his own who, when he was finally challenged, turned out to be a tenant who didn’t have anyone’s proxy and hadn’t had for years – but he was the longest-running resident of the building so after a few years everyone assumed he was an owner.

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[Jimmy-T]

'The law' is whatever is says in your by-laws. What you probably need to do is get the by-laws revised to reflect the new situation in your building – something that should have been done before anyone installed 'private' air-conditioning. But the general rule is that members of the owners corporation are responsible for all common property without limit. You'll need a 75 percent vote in favour to get the by-laws changed – best of luck with that!

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[Jimmy-T]

That’s specifically NOT allowed by the by-laws of my building. But each building potentially has different by-laws. Have a look at yours – the answer may already be there.

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[Jimmy-T]

The by-laws of your Association will state the permitted ages of people allowed in the pool unsupervised.

Vandalism is not allowed under any rules that I know of.

The kid's friends are guests of his parents, effectively, so they are responsible for their actions.

The “I am an owners so I can do what I like” argument is simply not applicable in any strata. “I am an owner and I have to obey the rules or face the possibility of fines” would be more correct.

The association should be issuing Notices To Comply for each of the breaches of by-laws. 

The police might intervene in cases of vandalism and threats or personal abuse but otherwise they would rightly say that there is a mechansim for dealing with this within the strata so it really isn't any of their business.

Date-stamped photographs of the boy and his mates misbehaving might be in order for future action.

Being called a troublemaker is a bit of a badge of honour in strata – hey, that's what people call me.

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[Jimmy-T]

TiredOfStrata (what a sad name) has a point – but only if these by-laws apply in this building.  Buildings don't have to adopt the model by-laws and some do then amend them.  But working on the basis that this by-law or something like it applies, then he's right, go to Fair Trading for mediation.  I can't say what I would do in this situation but I can tell you, if I firmly believed I wasn't breaking any by-laws, it would be a more direct action.

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[Jimmy-T]

It's that last line that makes my blood boil: “There is no discretion with the requirements in 45(2).”

What a cop-out!  Knowing there was no discretion if the document didn't exist, couldn't the Member have adjourned for half an hour to let the plaintiffs get the document?  Couldn't he have continued hearing the case while it was being fetched and dismissed the case if it didn't turn up.  We're not talking about the LAW here, we're talking about bureaucratic paper-shuffling, nitpicking and pen-pushing.  I sent an email asking to see the missing minutes and they appeared on my computer, ready to be printed out, about 15 minutes later.

And where, in all this process, is the person from the CTTT saying, “Now, make sure you have such and such a document or the case can't go ahead.” The CTTT's feeble excuse for not providing what would be an invaluable advisory service is that they can't favour one side over the other.  But nobody's asking for that.

I'm simply saying, if you set up a system that's INTENDED not to have lawyers involved, why do you run it in such a way that anyone who doesn't understand the full implications of every aspect of the law has every chance of not jumping through all the legal hoops over which no discretion can be exercised.

And the big problem for everyone living in strata is that this, while it may be an extreme case, is far from isolated.  I have a file stuffed with ridiculous decisions that have cost home owners tens of thousands of dollars and months if not years of grief because CTTT members have either ignored the law or declined to apply common sense and empathy to people who are already at their wits' end.

OK, there are some very good people working at the CTTT and in any fight, the losing side is likely to call foul. And everbody makes mistakes  … except maybe the CTTT.  When they get it wrong they close ranks like league players after a particularly lively Mad Monday.  Nobody did anything wrong, the victim is the culprit and if you have a problem take it elsewhere.  We are not interested.

Here is the follow-up email from our reader after I had put a call into the CTTT to ask what was going on:

Just letting you know the CTTT notified us today that they would not re-hear our case as it was 'misconceived'.  They also don't consider that we have 'suffered an injustice or that the decision was against the weight of evidence' – considering they didnt even look at or even process the application for police documents to back up our evidence, or respond to my letters of complaint within their own timeframe, or notify me of what happened to the [police] application that I paid for and heard nothing more about – this is completely hypocritical.

They dont even abide by their own rules. The whole saga is a massive joke and I'm outraged that being a government department, my tax dollars fund this bogus organisation.

I know they told you that they would refund my money for the application but they havent, they also have not notified me about it or answered my questions. They wrote that we can take the matter to the district court.

Is it really possible that this can be allowed to happen and no one can do anything about it? Is there anyone out there that is aware of what is going on in there and worried about it?? I hope you tear them to shreds in your article-they deserve it.

Thanks for trying to help us.

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[Jimmy-T]

Here's the official CTTT response from Garry Wilson, Deputy Chairperson:

The Consumer, Trader and Tenancy Tribunal will make appropriate orders in strata applications where clear evidence is available to substantiate the order.  In this particular case, the Owners Corporation failed to comply with section 45 of the Strata Schemes Management Act 1996 and therefore an order could not be made in accordance with the legislation.  Based on the evidence provided to the Tribunal, the notice to comply with a by-law was issued prior to a resolution being made by the Owners Corporation approving the issue of the notice and therefore was not issued in accordance with the Act.

 

Now that the resolution has been approved by the Owners Corporation, it can recommence the action if it is considered to still be necessary and appropriate.

The fee for the issue of a summons of police incident reports is being refunded.

Here is the section in question:

 

STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 45

45 How can an owners corporation enforce the by-laws?

(1) An owners corporation may serve a notice, in a form approved by the Director-General, on the owner or occupier of a lot requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.

(2) A notice cannot be issued under this section unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation or the executive committee of the owners corporation.

There is no discretion with the requirements in 45(2).

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[Jimmy-T]

Here's the original email sent by an understandably outraged reader:

We just had a hearing yesterday at the CTTT trying to enforce fines for breaking a Notice To Comply. The by laws breached are quite serious involving loud disturbing domestic violence and harassment, which intimidates all other resident in the building- and has been going on for 6 years!

We had a large file of breaches , police attendance reports, AGM and EGM minutes, tenants who broke leases due to them [the noisy neighbours], and real estate agents telling us to do something about it.

The tribunal member didnt even look at our case, he dismissed it straight away when he couldnt find the very first minutes of the BC agreeing there had been breaches and agreeing to pursue them. We had this document and said we could produce it and asked for an adjournment, he dismissed it.

What a JOKE! We are talking about a violent, dangerous individual who got out of jail recently and even tells the police where to go. The poor owners who it took a lot of guts just to go there to face him then had to go home worried about what will happen now as a consequence, they live in fear in their own homes!

The CTTT encourage you to represent yourself-but then throw out cases without listening if you have made a mistake. I'm so disappointed in the system, if as a result anyone is physically harmed by this person for trying to defend their rights to live in peace the CTTT will have a lot to answer for.

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[Jimmy-T]

Murray Cameron of StrataREs and StrataIT – the online, web-based strata management company – has been a staunch supporter of the forum from day one and various individuals and companies (like Linders, Strata Plus ansd Strata Choice0 have offered support, advice and encouragement.  David Ferguson, chair of the Institute of Strata Titles Management has also been very helpful.  I hasten to add than these guys don't necessarily agree with or endorse my opinions  – but they seem to like the fact that I'm out here shaking the tree.

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[Jimmy-T]

Colin is a good bloke (and a good lawyer) and Alex is a bit of a legend.  But I have to give “big ups” to Teys, if only because they have been rock solid supporters of this Forum since day one, plus an honourable mention to David Bannerman for stepping up to the plate in the smoking case (see “Smoke gets in your eyes”)

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[Jimmy-T]

Further to that comment, a friend in the business has written to say this:

Waterproofing guarantees are not worth the paper they are written
on. All completed W/P membrane should be flood tested for 24hrs as a min pre
payment requirement and always check that the shower tap penetrations have been
sealed as this is a common mistake/ fault and is required under the AS 3740
(2010) standard. Full height wall tiling vertical corners should be sealant filled
particularly those within the shower recess.

The critical issue here is that water leakes can do as much damage as fire and can spread well beyond the confines of an individual apartment and its immediate neighbours.  I think the EC is entitled, in fact, obliged to do whatever it takes to safeguard the building.  However,  a special resolution seems like a blunt instrument for this purpose.  Anyone have any better ideas?

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[Jimmy-T]

Unlike in Victoria, there is no obligation here to respond to correspondence, except to note it's receipt and file it. The way to get this issue addressed is to put a motion to the next Executive Committee meeting to have them examine the issue and suggest remedies. They can't refuse to put a motion on the agenda (unless it's decreed to be 'incompetent' by the chair – which puts them in the position of having to justify such a decision).

Failing that, raise it as a motion at your next AGM and make sure you have a seconder. You don't need to be suggesting solutions but you should ask that the matter be addressed and a response formulated by a certain date.

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[Jimmy-T]

We seem to be talking slightly at cross-purposes here. There is a requirement to notify the Owners Corporation (or Executive Committee, more likely) 14 days before any work that affects common property (which would be likely to be just about anything that was going to make noise). The EC has a window of opportunity then to ask questions like, what’s happening with the rubble, are you planning to use the lifts etc etc and, in so doing, ask the renovator to limit the hours of work in exchange (for instance) for allowing them to use the lifts to move materials in and out.

Ironically, I got a note yesterday saying there would be work starting in two days on one of our top-floor apartments. That said, we have by-lawed restrictions on when drilling and power-hammering can happen and that has to be done in one four-hour block per week. It’s up to the renovators then to organise their work schedule so that the noise, though unavoidable, doesn’t end up starting and stopping for days and people like me can escape to local cafes.

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