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I think enough time has expire for you to make an application to NCAT (or threaten to) under section 232(d)
Are you sure it’s not 232(2): Failure to exercise a function?
And the expired time would be two months.
232(2): Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
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It’s not ideal but any property in NSW listed on a letting site (with a few minor exceptions) must have a registration number provided by the list. No rego number means they’re operating illegally.
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I mentioned “protection” because I was told of a case some years ago when an approval was waved through and when the A/C unit broke down the OC was asked to repair it.
The common property by-law defaults to the owners corp being liable for maintenance and repair if they haven’t bothered to get the beneficiary to agree to take responsibility.
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OK, proxy votes can be used to elect members of a strata committee, and anyone can be on a committee – even non-owners – provided they are nominated by a “financial” owner who is not standing for election.
So the question is really, who nominated this guy. Under section 31 of the Act, if it was his wife, that’s a no-no. If it was another member of the committee, that’s wrong two. If it was the elderly neighbour, you are entitled to see the paperwork – i.e. a letter nomination this guy for election to the committee. You could technically ask him to stand down until such times as hi nomination has been verified.
By the way, assuming you voted on the numbers you want on the committee at your AGM, the committee is required to fill the vacancies as soon as reasonably possible, so new members may be where your relief lies.
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I recently had the same problem with the bullying boss of a big strata firm that was refusing to hand over the strata roll to the company secretary because, basically, it wasn’t their policy and there were issues of “privacy”.
We got the strata roll and the email addresses.
Ok, these are all the bits of info you need:
- The owners corporation must maintain a strata roll (Section 178) and it must have the email addresses of owners in it.
- Any owner is entitled to view the records of the strata scheme which specifically includes the strata roll under the provisions of Section 182. Failure to allow that to happen can incur a fine of $550 in the first instance.
- The privacy act does not apply to owners corporations.
- The tribunal can order the strata manager or secretary to make documents available for inspection under section 188 .
That should be all the ammunition you require.
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Ask them if they have considered getting a strata loan. That’s easier for everyone (except those who have that kind of spare cash lying around).
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To be honest, the amount of detail you have spelled out, including demands to know all the materials that will be involved and the warning that costs for strata manager time will be transferred to the applicant, reads like an attempt to deter the installation.
The owners corporation is entitled to know the impact the installation will have on common property (and possibly the electricity supply), to have a binding undertaking that the lot owner will maintain and repair affected common property, and know any visual impact it may have on the scheme.
You are also entitled to ask that a professional installer be used and for the lot owner understand that any noise issue could result in the unit being limited in the times that it is used (e.g. not at night) or removed completely.
But you can’t project a worst-case scenario on to the regulations that you want to impose. You have to give people the opportunity to act in good faith but with a clear understanding that there will be consequences if they install a noisy or otherwise intrusive unit.
The question of the power load is more important than most people realise, but for that you need to know what the power capacity currently is and what the limits for additional air-con units might be. That is something your OC probably needs to address separately from this individual application, in case this leads to a number of similar requests.
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(g) Are you aware the matter will require a special resolution?;
If it’s a reverse cycle air-con in may only need a sustainability by-law which only requires a simple majority.
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This would be why the NSW government now insists that all strata records are digitized and stored securely.
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Don’t believe that engaging a lawyer leads to court.
Agreed and, to be clear, I wasn’t suggesting court action. When you’re dealing with the sub-contractor of a developer who is only interested in getting a job done as quickly and cheaply as possible, who probably doesn’t understand their legal obligations and who has no idea about the extent of your knowledge of the law, then a lawyer’s letter can clarify issues to the point where sensible negotiations can begin.
At least then the builder can’t go ahead and do as they please and then turn around and say no one told them they couldn’t.
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Any pointers in applying to VCAT?
I believe Victoria has just recently reactivated its Dispute Settlement Service . That would be a good place to start. And Julie’s advice to gather as much practical information as possible can only help, whichever way you go.
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I doubt very much if the SCA will provide you with her details but they might pass on your details to her, if they know where she is, and invite her to contact you.
Otherwise scour your emails for any from her that contain her mobile number (possibly inadvertently). Mobile numbers tend to go with the person, rather than the company.
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I have to say I’m a bit disappointed when the answer is always “see a lawyer”.
But it isn’t “always”. You’ve had your rights explained and the original question was about replacing the wall with a different barrier. Compared to the substantial and unnecessary charges you seem to be contemplating, a lawyer’s letter is a minimal impost and a sensible approach.
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If they are demolishing the wall, they have to pay for all of it. Talk to a strata lawyer and have a letter sent, as advised before.
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You certainly could speak to a lawyer but the threat of doing so may be enough initially. I don’t know your committee and how they respond to legitimate requests and implied threats but if it was my block, I would do it with an email initially. Something like:
I believe you have been wrongly advised about the status of my parking space and the owners corporation’s continued and unapproved use of it to store garbage bins. The strata plan clearly shows that this is my lot so, to bring this dispute to an amicable conclusion, I have two simple requests:
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- Immediately find somewhere else on common property to store the bins on a permanent basis.
- Have the boundary lines of the parking space repainted to reflect the correct dimensions on the strata plan.
Failure to fulfil either or both of these reasonable requests will leave me no option but to consult a strata lawyer with a view to seeking orders from NCAT and compensation for the use of my space, backdated to when the scheme first started leaving its bins there.
Needless to say, should the strata scheme choose to engage in unnecessary legal dispute, I will seek all costs as part of any judgement.
Please advise as soon as possible how you intend to proceed.
If they ignored it or refused, that’s when I would get a strata lawyer involved. I hasten to add, the committee in my block would never allow this to happen – if nothing else, they are sticklers for the rules.
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