[Jimmy-T]

Unless the by-law includes a provision that the lot owners are responsible for the upkeep of the blinds, I don’t see any point.  What is the by-law intended to achieve?

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[Jimmy-T]

The idea that you might be excluded from a meeting that discusses an issue in which you have some personal or financial interest is deeply flawed. Don’t all the other members of the committee have a personal or financial interest in the outcome too?

I was just reading a VCAT ruling the other day where the Members said that they didn’t think an owner should have been excluded from the meeting where they discussed his actions against them at the tribunal as it wasn’t a conflict of interest any more for the owner concerned than for the committee members.

On the other hand, they also noted that they were not prepared to say that there were no situations where it might be appropriate to exclude the owner from the meeting.

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[Jimmy-T]

86_strata wrote:

What do you mean by ‘internal common property wall’?  If it is an external wall, then I thought you as the owner were responsible for the internal property-facing side of the wall i.e. the internal wall, plaster, membrane etc. that is shared with the brickwork on the outside (which is the OC).

It’s different in Victoria.  In NSW and, I believe, Queensland, any surface that backs on to common property or an adjoining lot is common property too.  Another example of how Victorian strata law is behind the times.

 

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[Jimmy-T]

The first questions I would ask are:

1. Do you charge Schedule B fees and if so, can we put a cap on them?
2. Can we meet the person who will be our strata manager, what is their experience, and can we have the mobile numbers of the secretaries or chairs of their previous buildings?
3. How many other buildings will our SM be managing?

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[Jimmy-T]

What Sir Humphrey says, although you may want to lock it in with a mutually beneficial leasing arrangement that, if possible, endures beyond the current ownership of the lots.

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[Jimmy-T]

And while I have your attention – the point of my story wasn’t whether or not smoke drift was harmful, it was that strata law says it is (it’s a nuisance) and the Tribunal did not doubt that the plaintiffs were subject to it.

However, the NCAT Appeals Panel – clearly in a fever dream that they were the US Supreme Court – decided to question whether or not it was really a problem, apparently on the grounds that the victims hadn’t provided evidence of the harmful effects of cigarette smoke (which was not required in any case).

This is the kind of thing that (rightly) undermines our faith in the whole mediation and tribunal system which lurches from the ineffectual to the farcical, with strata residents stuck in the middle just seeking a simple answer. The fact that the plaintiffs eventually won doesn’t mitigate against the huge waste of time, money and emotional energy that this exposed.

 

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[Jimmy-T]

Having just watched barbecue smoke pour off a balcony two floors below mine, I’m afraid I’m not in agreement with the “why ban this when something else is just as bad?” argument.

I had a boss who complained about smoking being banned in the office on the grounds that the air on the street was more polluted. The argument that at least we could get some relief from toxic fumes at work cut no ice.

Permanent change tends to be gradual.  I like going into pubs that no longer stink of cigarettes (and, yes, I used to be a smoker too).  More than 60 percent of Australians have never smoked, rising to 80 per cent of 18-24-year-olds.

I find the stink off a smoker’s clothes when they get in the lift pretty offensive and I’m guessing that’s down to being sensitised to the smell.

We put up with a lot of stuff in our lives – including the fumes from motor vehicles – but that doesn’t mean we should never complain about it when it offends.  Environmental pollution is probably a significant factor in the increasing incidence of allergies among kids.  So reduce what you can and let the rest die out naturally, would be my view.

Oh, and regarding your comment that barbecue smoke could be carcinogenic – standing in smoke that combines burnt meat (very cancery) and fossil fuel is the equivalent of smoking 100 cigarettes, according to French environmental group Robin des Bois. And, hey, they’d mean French ciggies, too.

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[Jimmy-T]

tonytran2015 wrote:

I am an accommodation provider in Melbourne (landlord), and I feel that it is immoral to ask renters to bid.

And illegal, apparently.

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[Jimmy-T]

Austman wrote:

And in the case of a spontaneous burst water pipe, the body responsible is likely the pipe manufacturer or the pipe installer.    The owner might be liable if they could have reasonably foreseen the event.

But it wasn’t a spontaneous event. Someone literally stuffed up a sewage pipe that was otherwise functioning normally. I think someone who has been stuffing disposable nappies and cat little down their toilet might have foreseen that it could cause a problem.  Just as well you don’t have to pass an intelligence test to be a parent (or pet owner).

The OP in this thread had just had a new piece of equipment fitted and it failed, flooding the flat below.  That probably isn’t a spontaneous event.  It was more than likely a failure of equipment or its installation. They should pay and claim it against their insurance, if they have any.

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[Jimmy-T]

Thanks Jimmy.

I find the suggested first step very positive as the initial approach.

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[Jimmy-T]

annabel98 wrote:

One of the other residents spied him, asked what he was doing here, and then charged up to my door telling me I couldn’t touch the floors without body corp approval.

This sound like you have a nosey parker bush lawyer for a neighbour.  Send the committee a courtesy note telling them what you plan to do and how you will be observing the noise and cleaning requirements in the by-laws, then get it done.  It would be different if it was a common area floor outside your unit, for instance.  But I really can’t see an issue here.

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[Jimmy-T]

Smokeye wrote:

What do you mean, the model by-laws will apply by default? If so, what’s the point in adopting the model by-law in the first place?

It is my understanding (and I could be wrong*) that if you don’t have a by-law covering a specific subject, then the model by-law on that topic applies.  However, it strengthens your case a great deal if a) you have a by-law and b) your strata scheme hasn’t voted against having a by-law. In one Tribunal case about smoking recently, the Member noted that there was no by-law in place.  That wasn’t the reason for overturning a smoking ban, but it obviously figured in their thinking.

*This information came many years ago from a senior mediator at Fair Trading. It may have changed.

strata laws on nuisance / expensive legal action – what do you mean? I can take my neighbour to NCAT for smoke drift under s153 for nuisance/hazard?

Any owner can take another resident to NCAT seeking orders to prevent a breach of strata laws.  Causing a  nuisance (and smoke drift is specified) is a breach of strata law.  However, it carries more weight if the complaint is taken by the strata committee. To be clear, the NCAT action would be against one smoker – not all smokers in the building.

“moderate conditions that could see them prevented from smoking anywhere in the building, including their own homes” – does this mean that if, in the future, smoking is outlawed in strata buildings, they will have nothing to fall back on?

Hypothetically, if you pass a by-law that says, for instance, they can’t smoke on common property or on their balconies if they allow smoke drift into other homes, they can still smoke inside their homes and on their balconies, provided it isn’t bothering anyone else.  However, without a by-law, a resident could theoretically get orders to prevent any smoking that bothers anyone anywhere and those smokers might not only be greatly restricted in what they can and can’t do, but would be in breach of Tribunal orders if they continued and the penalties for that can be  much higher.

Am I allowed to circulate a leaflet to all residents by putting it in their letterboxes? I am the secretary of the EC.

Absolutely.  If you are talking about the need for a by-law, that’s part of the normal business of the strata scheme and you can send emails to non-resident owners too.

Could you recommend a good strata lawyer whose brain I can pick for a fee? I am in Sydney.

Good idea! There are two legal firms advertising at the top of this page Sachs Gerace and Bannermans. I would recommend either of them and be sure to tell them you got there via Flat Chat.

 

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[Jimmy-T]

The first and best option is to make sure the objectors don’t raise the necessary 25 percent of unit entitlements needed to block the by-law.  That means gathering as many votes and proxies at the meeting as you can.

Part of that process will be to convince owners that if they don’t pass the by-law, and don’t have a by-law about smoking in place at all, the model by-law will apply by default.

Also, strata laws on nuisance – which supersede by-laws – will mean the owners corporation can look forward to months if not years of expensive legal action, defending a position that most of them don’t agree with.

On the other hand, rejecting the by-law means the smokers have fluffed their last chance to moderate conditions that could see them prevented from smoking anywhere in the building, including their own homes.

Or you could just let them shoot themselves in the collective foot.

If it were me, I’d be circulating a politely worded and succinct leaflet about how horrendously expensive it could be for everyone if they don’t pass a reasonable by-law.

And I might chuck in a line about how not controlling cigarette smoke could lead to barbecues being banned too.  Don’t explain (it’s drawing a long bow). Baffle them with BS and blind them with science.

If that fails, you can petition NCAT (possibly under section 148 – revival of repealed by-laws) to order the owners corp to adopt a reasonable by-law that controls smoking – not on common property and not on balconies if it drifts into other lots.  The owners corp may well decide not to defend the action on grounds of costs.

This option would definitely benefit from consulting an experienced strata lawyer.

 

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[Jimmy-T]

SteveM wrote:

Painting a picture of entire jurisdictions based on anecdotes about individual buildings isn’t particularly useful. They can be useful if the context and framework that led to the failure is known, and highlighted.

This is a hugely relevant point. Years ago I did a story about one major and highly regarded developer who was demanding proxy votes from owners as a condition of purchase of their units.

They then used their proxies to run the scheme exactly as they wanted, including sacking the entire committee of a block that objected to the “private” marina outside their building being turned into a commercial enterprise. The new committee wrote to the local council and planning department saying the block was now fully in favour of the development.

When the story was published, then planning minister Frank Sartor changed the law to prevent contractual demands for proxies (soon after taken up by Victoria), citing community unease and media reports. That would have been me because no one else was writing about strata back then.

More recently, we exposed a developer who had deliberately delayed the finish to an apartment block so that he could rescind the contracts under a sunset clause.  The purchasers could either get their deposits back or pay another couple of hundred thousand to secure the purchase (it was a very hot market at the time).

The then (and now again) Fair Trading minister Victor Dominello changed the law overnight to make it so that the developer had to get approval from the Supreme Court if they wanted to invoke the sunset clause. The developer tried it that way and was sent a way with a flea in his ear.

In both cases, the stories were about single instances but they illustrated a larger or wider problem. Random anecdotes are often just little local difficulties, but when a number of them expose the same flaws in the system, they are worth telling and re-telling until someone pays attention.

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[Jimmy-T]

The more I think about this, the more I realise that the whole system is perfectly imperfect.  Some strata schemes will consider community engagement as a major component of their lives, others – especially those dominated by investors – will see the balance sheet as the prime and possibly only consideration.

The important factor in this is that the owners get to choose their committee at the AGM and the committee sets the course on how the scheme will be managed.  The problem is that no one standing for committees (that I have ever seen) provides any kind of information about what their priorities would be.

So I suppose it’s then up to the owners to ask candidates for election what their priorities are and then vote accordingly.  And maybe a smart and brave owner (who will be hated for prolonging the agony of an AGM) could turn the meeting into a kind of impromptu hustings by asking each candidate what their priorities are – cash or comfort?

And it would be handy if prospective purchasers could get a sense of the kind of community they were buying into – financially rigorous above all or community minded, albeit with a weather eye on the levies.

Otherwise, you get the committee you deserve, rather than the one you want.

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