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It’s more common than any of us would care to think. It usually happens in small schemes where mutual back-scratching, nods and winks help everything to run smoothly, with both parties assuming everything will work out and there will be no problems.
If problems do emerge later, it’s possible that everyone concerned has moved on and it’s the owners left behind who carry the can for repairs.
How do you avoid it when the culprits are long gone?
You could ask your strata committee to conduct an audit of any changes made to common property with or without permission, with an “amnesty” of post-dated by-law approvals (including a transfer of responsibility) for anyone who conducted major renovations with proper permissions or believes thers have been unapproved renovations done on their property.
It would be great if we could hunt down renovators who have sold out and call them to account for disasters they left behind them. The property disclosure statements differ from NSW and Victoria.
In Vic, vendors must by law declare if the property contains illegal or non-compliant work. In NSW there is no such provision (see HERE).
All states should require vendors of strata properties to state whether or not work done to bathrooms or other common property has been carried out with proper approvals or by-laws. Not doing so would be an offense.
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The affected lot owner claimed $9,494.00 in damages from the OC. But lost. They could not establish the OC’s negligence or failure to maintain its common property …
From reading the finding, the was no ruling against the owners corp as it was obvious that someone else was at fault, not the Owners Corp. Indeed, the quoted section of the Water Act said: “the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.”
Obviously the owners corp had not stuffed the pipes with kitty litter and disposable nappies (as had happened here) and the Tribunal couldn’t establish who had. The plaintiff in this case was seeking damages from the wrong body.
The ruling doesn’t say what has been argued here previously, that the OC would not have been liable if, say, the pipe had ruptured, causing the flood. It’s a false equivalence.
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Perhaps a motion to erect a permanent cover (maybe with solar panels) might focus strata committee minds on the real issues here.
I mentioned solar panels partly because that would mean you only required a simple majority not a special resolution for approval at a general meeting, as it would come under “sustainability” provisions (and partly pay for itself).
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If they don’t have responsibility, then who does.
This is the key question and it’s why Section 108 (4) says this:
(4) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has responsibility for the ongoing maintenance.
The provenance of the sail cloth may be in doubt but the floor and lift shafts are definitely common property.
I may be wrong but I think someone needs to tell the committee that this is strata responsibility and if they try to shirk it then they will probably lose and end up having to replace the covering as well as owners having to pay any legal fees incurred in disputing it.
I also wonder about the safety and efficacy of a sail shade in these days of extreme weather. Perhaps a motion to erect a permanent cover (maybe with solar panels) might focus strata committee minds on the real issues here.
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This is a common complaint in strata schemes and committees (and owners) can get very lazy when things appear to be running smoothly, although that may only mean that important issues are being ignored.
However, rather than taking a blanket approach with your complaints, break them down into what are the more obvious issues that have simple solutions.
In this case, the committee is required by law to issue agendas and minutes of their meetings. Have a look at Schedule 2 of the Strata Schemes Management Act (it’s near the end of the document).
It outlines the requirement for notices of meetings (three days prior) and agendas. It also says minutes should be distributed withing seven days and establishes your right to attend these meetings (but not necessarily to speak).
You could send the chair, secretary and strata manager a note saying something like:
I wish to establish my rights and the committee’s responsibilities under the NSW Strata Schemes Management Act. They are as follows:
- The secretary of the committee (or strata manager) is legally obliged to publish a notice of strata committee meetings, with detailed agendas, three days before any such meeting (Schedule 2, Part 2).
- The secretary of the committee (or strata manager) is legally obliged to distribute accurate minutes of a meeting, including decisions made, within seven days of the completion of any strata committee meeting (Schedule 2, Part 3, Section 17).
- As an owner, I am entitled to attend all strata committee meetings. (Schedule 2, Part 3, Section 13).
- As an owner, I am entitled to view all records, documents and correspondence conducted by or on behalf of the Owners Corporation, subject to the terms of Division 2, Section 182 of the Act.
Please let me know in writing why any or all of these conditions should not be met by the strata committee of [take in strata scheme SP number], its office bearers or strata manager.
Or, preferably, immediately take steps to ensure that I am furnished with notices of meetings, agendas, minutes and am allowed to attend meetings and view documents under the conditions set by the Act.
If that doesn’t work, you could get a strata lawyer to send a similar letter, but this time outlining the possible consequences of the committee’s failure to abide by strata law. Good luck.
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I’ll back what Sir Humphrey says, but I’d also be ready to be a tad more aggressive.
First of all I would get a local real estate agent to guesstimate the difference the view of a neglected garden would make to rents and purchase prices, compared to a view of a well-tended patch.
Then I would ask for a meeting with the chair or secretary to explain the steps you intend to take to get it fixed.
First, the simplest and least painful option for all concerned, they could support a motion to spend money on improving the neglected garden, then budget to spend just as much on its upkeep as they do on the front garden. The fact that no one wants to raise levies is irrelevant – the owners corp has statutory duties that it must fulfil.
Failing that, you will seek the support of other owners, especially those who share your aspect, in getting the committee to change its mind. You will explain to these owners how the neglect of the garden is affecting the value of their properties and to the other owners how doing nothing could cost them more than taking action.
Then submit a motion to the committee with a rider to the effect that failure to act could cost the strata scheme more, in real and immediate financial terms, than doing what is required. At least then you will have it on the record.
If the committee dig their heels in, tell them you intend to commence proceedings through Fair Trading and NCAT to enforce Section 106 (below), explaining that it will cost more to defend the action that it would to fix up the garden
If they’re still not listening you might suggest that failure to fix the common property could also, theoretically, result in claims for damages (loss of value or rent) by all the affected owners under Section 106 (5).
And you can point out that section 106 (3)(b) makes it clear that even a decision by special resolution not to fix the garden would be invalid since it would “detract from the appearance of any property in the strata scheme.”
First get some support from other owners, then talk to the office-bearers and, as Sir Humphrey suggests, offer to make it as easy for them as possible (such as volunteering to help with the work if they provide tools, plants and materials).
But if they are not listening or delaying, explain how you have strata law on your side and any efforts to obfuscate or defer will cost them and other owners (but not you) dearly.
106 Duty of owners corporation to maintain and repair property
(1) An owners corporation for a strata scheme must properly maintain and keep in a state of 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 section 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.(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.
(8) This section does not affect any duty or right of the owners corporation under any other lawIf 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.
Seriously, if there was ever an area of life where one size doesn’t fit all, it’s strata.
Just to point up one difference, proportionately, twice as many people in NSW (14%) live in strata, compared with QLD (7%). That was 2019 figures from a UNSW survey so it may have changed (although we’ve had a pandemic since then which put a lot of changes on hold).
What surprised me was that roughly the same percentage of them (48%) were renters. The power imbalance is between investors and resident-owners, whom I see as “double investors” since they not only buy the properties but have to live with the consequences of decisions made partly by outsiders, some of whom may never have set foot in the building.
This website and Forum are full of stories from residents whose lives have been negatively affected by absentee owners whose only concern is the balance sheet.
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So they are not people’s homes, then? Am I being trolled here? You certainly sucked me in, if that’s the case. Or is this a uniquely Queensland perspective?
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Me too. But I think you have to embrace the fact that people will bring their emotions to the table whether you want them to or not. And I wasn’t joking about the Qld perspective. The history of strata in Qld starts with holiday homes and predominantly residential blocks are a relatively recent (past 20 years) factor. It’s the opposite in NSW and Victoria, where strata started as residential (with the obvious exception of traditional holiday towns) but then was dragged into holiday rental territory thanks to things like Airbnb.
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Run them in a business-like manner, by all means. But like a business? Where the balance sheet is the prime and possibly only consideration? If you try to take the emotion out of strata you risk ignoring one of the prime motivators of owners and residents. You can’t let emotion rule strata schemes, that’s true, but you ignore it at your peril. “My home is my castle” is one of the great barriers to progress in strata communities, but it’s not going away any time soon. Recognise it, deal with it but don’t ignore it.
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