[Jimmy-T]

There are two general issues here – the first is whether or not you are liable for damage caused to the kitchen and secondlywhther the owner has a responsibility, as a member of the Owners Corporation, to report that there was a problem.

 

The first issue is more clear-cut than it seems;  generally speaking, if a failure to maintain common property has caused damage to an individual's property then the Owners Corporation is liable for repairs.

 

Now, this is where I get into dangerous waters for the simple reason that I'm not a lawyer. However, I reckon a court (not necessarily the CTTT) would possibly rule that the failure to alert you to the problem has contributed to the damage and therefore this owner can't expect an entirely free kitchen out of this.  However, what you really want is to avoid going through the CTTT (which is, frankly, a lottery these days and they will end up nudging you towards the District Court anyway). 

 

You also want to avoid going to court if you can becasue it will cost everyone time, money and – most importantly – heartache.

 

So my advice would be to take advantage of the free mediation service offered by the Community Legal Service (click here) and try to resolve this as amicably as possible.

 

Leading on from this, I have a question for our legal eagles – do individual owners have a duty under strata law to inform the Owners Corporation that there's a problem with Common Property?

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[Jimmy-T]

The first thing that occurs to me is whether or not there is a shortage of spaces for bona fide visitors.  If not, the next point is why would you give away a valuable resource to a resident just becasue they have more cars than they have spaces for. 

In other words, you could (theoretically) be renting these spaces at the going rate for car spaces in your area and provided you aren't renting the spaces to non-residents, you're benefitting the whole building. 

However, the on major consideration is whther or not your allocation of visitor car spaces is part of the Development Approval for the building.  If it is, you could run foul of your local council because you have breached the terms of the DA. 

How would they ever know?  The first time someone can't get a visitor space or finds that all the allocated spaces have been rented out, they could be on the phone to the council.

But if you can avoid these various pitfalls, my view would be to install pop-up bollards and rent out the spaces with the proviso that they have to be returned for the use of bona fide visitors at times of high usage like Christmas and New Year, for instance.

You'll need  special resolution by-laws to do this properly but I'm sure there are lots of buildings with “informal” arrangements along these lines.

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[Jimmy-T]

Struggler wrote: If the car wasn't parked where it shouldn't, then the vehicle wouldn't have had to negotiate in reverse to get out of there and would not have knocked the  mirror.

Have I misread this?  He's parking on the grass (which is his) and that's where the car was damaged by a passing oven, no?

I get the whole thing with too many cars for the car spaces (especially with more kids growing up to drive cars but not using them to leave home) but this seems like a bit of give and take is seriously lacking in this development.

It sounds like NRB is OK on the grass where his car should be reasonably safe from reversing neighbours and itinerant kitchen appliances.  On the other hand, if the grass is also common property, then there's only one solution, either park on the street or sweet-talk the neighbours.

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[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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