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The first questions I would ask are:
- Do you charge Schedule B fees and if so, can we put a cap on them?
- 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?
- How many other buildings will our SM be managing?
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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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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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Thanks Jimmy.
I find the suggested first step very positive as the initial approach.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.
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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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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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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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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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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