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The requirement is for mediation by the Secretary under Division 2 or otherwise.
So the CJC mediation service or another recognised service would suffice, I suppose. Thanks for that. FYI, readers, Richard is an eminent strata and property lawyer.
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Is this the secret to the rumour not one breach notice has been issued by Fair Trading?
Fair Trading doesn’t issue breach notices – not their job – and its “investigation” unit is non-existent when it comes to strata. All FT does in strata is offer limited advice and the facility for mediation which is often just a box-ticking exercise so that disputants can move on to NCAT.
The whole system is unwieldy and ineffective but the mandarins at Fair Trading and Justice will do nothing to fix it in case they have to cede territory. BTW, Labor is curiously silent on this clear failure of consumer protection, so don’t expect anything to change regardless of the outcome of the election.
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I need other documents but there’s no point going back to NCAT if its happy to accept a simple verbal promise from a strata manager without any proof whatsoever.
It’s harder to prove someone didn’t do something than show that they did. The whole Fair Trading and NCAT system needs a radical overhaul, but I doubt if the two bodies concerned – Customer Service and the Attorney General’s office – even talk to each other. And Labor are absolutely silent on this, so no light at the end of that tunnel.
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If there is a by-law and it has been breached, any owner (or tenant, for that matter) can take action at Fair Trading then NCAT to have the by-law enforced. And the best part of this is if the majority on the committee – the other couple – choose to defend it and lose, they will end up wearing the costs of doing so.
Perhaps getting someone to explain the facts of strata life to them might obviate a lot of hassle and ill-feeling.
But first, what do your by-laws say?
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These are questions to ask at your AGM. I can’t see any aspect of law that specifically covers this but your fellow owners may be less than impressed, especially if you can come up with cheaper quotes for the same level of cover.
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Insurance needs to be blanket coverage as there are just too many unforseens to be able to list each and all variations. Much like 3rd Party cover for your car.
But this isn’t compulsory third-party car insurance. I realise insurance (or lack thereof) is used as a dubious excuse to restrict people from eveything from overcrowded bars to bouncy castles. In this case, I guess you’d have to look at the policy and see what it says. But, yes, I have heard of intruders into private property suing for damages when they injured themselves on something that was unsafe. Or maybe that’s an urban myth.
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Failure on the committee side to act within I think 6 weeks will be taken as a No vote and the motion would fail – which you would then take it to the Commissioner’s Office and it’s pretty likely they will be overruled as being unreasonable.
In NSW it’s two months, then mediation, then NCAT – possibly even a longer time to get a result.
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I ask because if an OC is not obliged to enforce it, what use is it?
We have had this argument time and again on this forum and as far as I am concerned, the owners corporation, through its committee and/or strata manager, has a duty to enforce its by-laws.
According to Fair Trading Minister Victor Dominello, his Second Reading of the Act made that clear, back in 2015.
That’s not to say that there is a compulsion to proactively police observance of the by-laws, but when there is a complaint about an evident breach, they are obliged to act.
When they decline to do so, owners or tenants can apply to the Tribunal under Section 232 (2) of the Act, “Failure to exercise a function”. That section of the act says that if you make a complaint and they don’t respond within two months, or if they say they don’t intend to do anything, you can seek orders from NCAT, compelling them to do something about the problem – in this case a by-law breach.
We have had committee chairs on here several times saying that if they were compelled to pursue every by-law breach, they would give up. Our response has always been, if you have by-laws on your books that you aren’t prepared to enforce, then they shouldn’t be there.
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I’m no lawyer but I can see several holes in this and, yes examples of over-reach. The one that jumps out is the automatic door closure exclusion. The door closure contributes to fire safety for the whole building, not just the lot in which it’s fitted, so it can’t be left to individual lot owners.
I also have issues with the exclusion of everything on the balcony because, depending on the age of the building, the balcony may well be common property.
As for your exhaust fan, the fire safety officer has told you it requires elements that contribute to the fire safety of the whole building, therefore it shouldn’t be left to individual owners to repair and maintain (in my humble opinion).
In your shoes, I would tell the strata manager that the by-law is significantly flawed and if it is used as an excuse to save the owners corp from fixing your extraction fan, you will seek to have the whole by-law thrown out on the grounds that it seeks to supersede superior laws and is therefore invalid.
The legal costs of defending that at NCAT will be more than the cost fixing the fan and then they will have to pay for a whole new by-law. Their call.
In any case, they need to get a strata lawyer to go through the by-law and remove the bits that render it an unreliable document.
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Maybe there are other ways to show that you attempted mediation?
Community Justice Centres in NSW provide a free mediation service for neighbourhood disputes but the Fair Trading and NCAT literature only refers to Fair Trading’s mediation service.
To be clear, evidence that you have attempted mediation is a compulsory prerequisite in most instances of going to the tribunal. The Tribunal’s factsheet only refers to the Fair Trading service but it doesn’t specify it to the exclusion of the CJC. I suppose if the Fair Trading service was so busy that you would have to wait weeks or months, and you needed immediate action, you could try CJC.
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Putting my bush lawyer hat on (it’s a wig, with corks) I’d say if the use by unauthorised people is being ignored, then the pool isn’t “fully compliant”. Its insurance coverage applies to authorised users, not the general public. If there was an accident, the body corporate – i.e. all owners – could find themselves directly liable for damages with no insurance coverage if it could be shown that they had knowingly breached their own rules.
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The applicant is to file and serve upon the respondents points of claim setting out the orders sought, the facts relied upon as justifying the orders sought and the legal basis upon which it is alleged that the facts identified justify the making of the orders sought by….
I can’t see what the confusion is here. The Tribunals wants you to send the “respondents”:
- A list of the orders you seek
- A list of the facts that form the basis for the claim (i.e. the breaches of by-laws and/or strata laws that you allege have occurred).
- A list of the laws that apply and which you claim have been breached.
Maybe I’m missing something here, but it seems pretty straightforward to me. Evidence has not been requested at this stage but you could allude to it in your response to part 2. E.g. Repondents have breached Section …. of the SSMA (photographs or correspondence etc on file).
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I think it’s been fairly well established that unapproved changes to the common property are subject to potential removal or remediation unless the owner has reached an agreement with the Owners Corp via a by-law.
The reason for this is, partly, that there has to be ongoing responsibility for the changes which can be passed on to the next owner without a legal battle over who is responsible for what.
In a case where an owner has made changes to the common property that the owners corp has not approved, the OC can ask the owners to either agree to a by-law (which they should pay for) or pay for the reinstatement of the common property. Or the OC can seek orders requiring them to pay for the reinstatement and the costs of the action. In other words, the OC is far from powerless in all this.
The law on this is enshrined in Section 108 of the Act. I believe that having been given the choice between legitimising their work on common property or having it removed, no Tribunal is likely to side with the lot owner.
The lot owner is protected in this in that the agreement can’t be rescinded later without their approval.
Your strata manager is making up strata law as they go, probably thinking (hoping) that it’s no big deal and it’s less hassle for everyone if they just record it but do nothing with regard to Section 108.
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I’m ASSUMING they cannot just use their larger percentage to vote for a benefit for themselves.
Why would you assume that? Decisions made by committees and at general meetings can be challenged at NCAT, or even in court if they are seen to disadvantage a minority of owners. But there’s no law specifically against it.
But there’s certainly nothing about pets being allowed on common property.
The key is if there’s nothing saying they can’t. Your fall-back is the part of strata law that deals with dogs that have permission but turn out to be a nuisance. Oh, and make sure your lawyer is a strata expert otherwise they may be no more clued-up on this stuff than you are.
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The laws surrounding strata voting are fairly loose, provided there is no intention to deliberately mislead, so I wouldn’t worry about the validity of previous votes.
And I think the AGM could cover both committee and general meeting votes, if it’s happening soon, but the committee could and should tidy this up if the AGM is some time away.
I suspect the post-Covid rules were brought in to cover schemes that hadn’t already gone to electronic votes but might want to
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