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Irena said:
There is a new tenant in our building that insists on storing her 2 bikes in the walkway to our building ( common property) …
This posting is going to be the basis of one of my columns this coming weekend but the gist of my response WAS that you need to introduce a by-law that imposes an 'admin fee' for anyone who breaches the by-laws and has a Notice To Comply sent to them (with provisions for that admin fee not being levied if it turns out thery weren't in breach).
I have since been told that this may not be strictly legal. What you need is a by-law that says anything that obstructs common property may be removed for fire safety reasons. Then you have another by-law that says there is an admin fee that may be charged for the return of these obstructions from storage. Either way, you need a strata lawyer to draw this up.
People who've been told they were in breach and continue to misbehave will soon stop if there is an instant 'fine' – although you must never call it a fine. Those excellent people at the Owners Corporation network (ocn.org.au will probably have a draft by-law you can use).
Also this tenant will almost certainly be in breach of her tenancy agreement so you can write to the landlords and tell them to either move her out or straighten her up.
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Unless you have specific by-laws to the contrary, the EC can't demand access without reasonable notice – and eight hours clearly isn't reasonable. Even then, apart from emergencies, it has to be done with the owners approval. Tenanted properties have even more restrictive rules on when landlords can gain access. The problem with being an owner in this regard is that a share of any costs caused by delaying the work will accrue to you. As for tenants, the attitude of “they're ony tenants” prevails it too many apartment blocks these days despite the fact that 60 percent of strata properties are tenanted. Regarding the use of bathrooms, this is a courtesy that you may or may not shoose to extend to workmen – it's absolutely your choice, regardless of whether you are a tenant or an owner. Someone has screwed up and they are getting heavy handed to cover the fact that they forgot to issue proper notices. They should be made accountable at your next EC meeting.
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I think it's pretty clear from the answers above that there is no obligation under law for the Owners Corporation to do anything in this regard – that's why you have the option of going to Fair Trading. There's nothing I recall in the Strata Act that says the EC has to pursue complaints by an individual owner. Call Fair Trading or consider getting a Noise Abatement order from your District Court (which means you really should talk to a lawyer).
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The simplest way is to check what by-laws you already have and then ask your EC to issue a Notice To Comply. There should be a by-law on your books that says your neightbour can't interfere with the peaceful enjoyment of another's property.
If you don't have that by-law, think about applying to your district court for a Noise Abatement order but obviously you need to talk to a lawyer first.
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My understanding is that the EC has no obligation to take action if they don't think there is a problem (and possibly even if they do). However, an individual owner can apply to Fair Trading to have them issue a Notice To Comply – but they will insist on attempt at mediation first. Gather your evidence and contact Fair trading (Tel 13 32 20)
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Any strata lawyer will be able to give you good advice on this – and I don't mean a solicitor who's done a bit of strata conveyancing and once lived in a flat. There's another post on this topic from Teys lawyers that list a few good names as well as their own. But why not try them first becasue a) they are regular cotributors to this forum and occasionally put me right on stuff and b) one of their team is related to Freddy Mercury. I just love the irony of getting a relative of the late Queen singer to complain that someone's music is too loud. Beelzebub has a devil looking out for me, indeed!
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Whale
There’s a lot of sense in what you say but plenty of ECs find that many Rental Agents and landlords would much rather make this your problem than theirs. You can waste a lot of time chasing agents and landlords to do something when there is no upside for them (especially if the rogue tenant pays their rent on time and doesn’t damage their property).
Perhaps the best approach is to do both, cover all your bases and leave these reprobates under no illusion that their behaviour is unacceptable and has consequences.
But Whale does have a point – the CTTT can be a lottery, especially if you get some duffer that thinks the Owners Corporation is a big company and the tenant is always the victim.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
OK, the first thing to remember is that tenants are subject to exactly the same laws and by-laws as any other resident, including owners. So get a copy of your by-laws and have a look at which ones you think they are breaching. Then go to an Executive Committee meeting and ask them to issue a Notice To Comply. You can download a Notice To Comply for here: https://www.fairtrading.nsw.gov.au/pdfs/About_us/Forms/Notice_to_comply.pdf.
The secretary of the Executive Committee can then sent the NTC or ask your strata manager to do so if they are worried about confrontations with the tenants. NB: You can only send one NTC per by-law breach and you have to specify the by-law that’s been broken. On the other hand, if they have broken several by-laws, they can get several NTCs and, potentially, several fines.
The NTC is effectively a final warning (although there doesn’t have to be any previous warning). If the tenants continue to breach the by-laws you take them to CTTT where the fine(s) can be imposed. Usually the threat of fines is enough to make most rogue tenants either behave or move out.
In a situation like yours, where the tenants have already ignored verbal requests to modify their behaviour, I would go straight to the NTC option. It’s not a fine, remember, it’s just a final warning but they ignore it at their peril.
Meanwhile, if they show no signs of changing their behaviour, gather as much evidence as you can including properly notarised statutory declarations and photographs (even recordings of the cat’s cries) so that when you take them to the CTTT the complaint will stick, the fines will be imposed and the threat of further fines will be hanging over them.
Hope this helps … if anyone has any other thoughts, please hop in and tell us what you think.
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Hmmm. I would question the strata manager's decree that this is not “reasonable repair” and requires a special resolution. That's a new on one me. The SM doesn't get to decide what goes on the agenda – you and the rest of the Executive Committee do. Maybe he or she just wanted to make a few dollars drafting the special resolution or perhaps they are over-cautious when it comes to advising you on what you can or can't do or there might be some owner who doesn't want to spend any money who is unduly influential. (Turns out I may have been wrong about this – see posting from Wim Jansen, below). It is perfectly reasonable for the Owners to decide a course of action for repairs and replacement of common property as a simple majority.
The important thing is that the Owners Corporation – that's ALL the owners – has a legal obligation to maintain and repair common property. So you can force the issue by getting a number of quotes for what would be a reasonable course of action – from replacing timber frames with timber to your low-cost plan – and tell them that choosing to do nothing is not an option. If they still refuse, you can go to the CTTT and ask for an adjudication forcing the OC to take action to repair or replace the windows. It may well be that replaceing all the windows is a more cost-effective way of dealing with those that are already in advanced disrepair and saving money on the others. Usually, all you need to do is explaining this to owners and quote the relevant section of the Act (Section 62) which says:
62 What are the duties of an owners corporation to maintain
and repair property?
(1) An owners corporation must properly maintain and keep in a stateof good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or
fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
a) it is inappropriate to maintain, renew, replace or repair the
property, and
b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
Note. The decision of an owners corporation under subsection (3) may be reviewed by an Adjudicator (see section 138).
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Both options are good – the pop-up bollard probably only needs EC approval but the non-fine parking fee will still need a by-law which will need 75 percent support at a general meeting.
I'd go the line of least resistance, at least to begin with.
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My first thought is a couple of strategically placed security cameras. A couple of years ago a simikarly disgruntled owner was caught urinating on the chairman's front door … and the miscreant was a lawyer, if I recall. But really, the deterrent effect is what you're looking for. And this is really a police and civil matter … maybe an AVO could be taken out. Anyone else with any thoughts?
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I think you'll find that waterproofing the shower may be entirely the Owner's Corporation's responsibility for the simple reason that un-fixed leaks can have a devastatiing effect on the integrity of the building. Don't look a gift horse in the mouth but check your by-laws; the offer of part payment may not be as generous as it sounds.
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I hear you. I just had this flash of genius – how about Strata Cops? It would be a mixture of private eyes and security who come in, install listening devices, cameras and monitors then present the evidence to the CTTT on behalf of the owners. I'm serious! Everything from overcrowded units and illegal short term lets to barking dogs, noisy floors, illegal parking and constant parties. Even better if you can find a way to charge this back to the culprits. Hmmm … must go and trademark the name StrataCops.
Jimmy
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