[Jimmy-T]

Flame Tree (Qld) wrote:

I’ve heard of balcony reno work being assigned, but not internal works. So should they be?

In NSW it is common for parts of bathrooms – common walls and floors, for instance – to be considered common property.  Retiling a floor would involve resetting the waterproofing and that would require a by-law which should assign responsibility for continuing upkeep to the renovator and successive owners.

Considering that leaking bathrooms are the No 1 defect in apartment blocks, this makes perfect sense.

This might not apply to townhouses as there may be little or no common property involved.

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[Jimmy-T]

I have a huge problem with the idea (often repeated here) that a failure to contain water in one person’s apartment is not their responsibility if it accidentally floods another unit – and that the affected owner has to prove the upstairs owner’s negligence.

I would think you might well start from the indisputable fact that water went from one apartment to another and then let the person who owns the flat where the water started its journey prove, if they can, that they were not responsible. Since this started with newly installed equipment, I’m guessing there’s a fair chance it was the installation that’s at fault.

The link to the article above doesn’t help much.  I would be interested to see a Tribunal ruling (if one exists) that the affected neighbour had no claim against the upstairs owner unless they could prove negligence.  It’s a lot harder to prove someone didn’t do something than it is to prove they did.

So – until someone shows me a tribunal ruling to the contrary – I am going to agree with stratalawyer (above) that there is liability and, if it was caused by a poorly installed fitting, then the upstairs neighbour should chase their plumber for the costs.

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[Jimmy-T]

Austman wrote:

In the case in this thread, the OC withdrew the fees before the case was heard at VCAT.  So we’ll never know if VCAT might have allowed some or part of them.

The Member said this:

“I have found that the disputed fees were not validly levied. In addition, there is no evidence that the Owners Corporation was authorised by special resolution, or ordinary resolution, to collect those disputed fees from Mr [Rodgers], either by debt collectors or subsequent legal proceedings, as required by s 18 of the OC Act.”

They added:

“I have found that the tax invoices comprising the disputed fees were not validly levied. However, had the proper process been followed, the Owners Corporation might well have been justified in charging back to Mr [Rodgers] the fees that all the lot owners had incurred as a result of Mr [Rodgers]’ extensive correspondence and requests for information.”

So now we know.  If proper process had been followed, they could and probably would have allowed the charges.

FYI: Section 18 says this:

18 Power to commence legal proceeding

(1) Subject to subsection (2), an owners corporation must not commence any legal proceeding unless it is authorised by special resolution to do so.

(2) If a matter is within the civil jurisdictional limit of the Magistrates’ Court and an owners corporation is authorised to do so by ordinary resolution, the owners corporation may commence any legal proceeding in—

(a) the Magistrates’ Court; or

(b) VCAT or any other tribunal; or

(c) a court of another State or a Territory that corresponds to the Magistrates’ Court.

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[Jimmy-T]

pukoh wrote:

shouldn’t the strata manager know what needs to be done to make the passing of costs directly to Mr Rogers ‘legal’.

Absolutely.  But it seems four law firms didn’t know, so the strata manager wasn’t alone. Although, to be fair, there were plenty of other reasons the law firms might have declined the gig.

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[Jimmy-T]

There is nothing to stop you although it would be highly inadvisable if you were in the middle of a dispute with the neighbouring strata scheme.

Otherwise, the advantage would be to potentially smooth progress in areas that were mutually beneficial.

The disadvantage would be if the committees of the various strata schemes disagreed on something.

On balance, I would advise against it but a different strata manager from the same company might be a workable compromise.

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[Jimmy-T]

It might be worth approaching lift maintenance companies and asking them if they can keep the lift running for the next five or six years while you raise the funds for a refurb – the contract for which they will be guaranteed.

Just bear in mind that if the lift starts to fail and that affects the access to apartments, your owners corp could be up to pay compensation to owners of tenanted flats (as per this story).

Doing nothing now could turn out to be a false economy in the future.

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[Jimmy-T]

Cam wrote:

I am really interested in whether, having passed all the required by-laws, one of them could be right of the Chair to declare a person “not to be heard” for continual breaches of standing orders, so that the person could be muted for the rest of the meeting.

If you are talking about strata committee meetings, then the committee has the power to agree not hear comments from non-committee members. Or to put that another way, you put forward a motion to hear owners A B and C and agree to hear only A and C.

As far as the AGM is concerned, the chair has no right to exclude owners from participating in the meeting but can control discussion, especially in a Zoom meeting.  Your standing orders could include an instruction to the chair  to moderate discussion that is not directly relevant to the topic on the agenda.  The chair should then feel very comfortable about muting the disruptive owner when they start on one of their rants.

Let the disruptor then pursue the complaint through Fair Trading and NCAT and be sure to let them know that the committee will ask for costs to be awarded against them when you defend it, on the grounds that the complaints were vexatious and of no merit.

You might even ask that the owner undertakes in writing to behave during meetings and not embark on anti-committee rants on unrelated subjects so that their valid opinions on specific subjects can be heard.  This will stand you in good stead if the owner does go to a tribunal.

Finally, we are all guilty of second-guessing the actions of owners and responses from tribunals.  Sometimes it’s easier to do what needs to be done and deal with the consequences if and when they arise. No tribunal is going to impose a statutory strata manager – the ultimate sanction – on a well-run building because they silenced one extremely disruptive voice.

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[Jimmy-T]

Get the owner of number 3 to pay for and sign a legal agreement (written by a lawyer and notarised)  that they will

1. Have the valve fixed immediately
2. pay for it themselves
3. indemnify the owners corp in perpetuity against any costs resulting from the repair work.
4. allow the owners corp access to the property for estimates and repair work if the valve is not fixed withing 14 days.

Something like that …

Otherwise you can commence action at NCAT under Section 122 (Power of owners corporation to enter property in order to carry out work) If it’s a genuine emergency you can probably get orders more or less immediately allowing you to demand access. If they refuse, there’s a maximum fine of $550.

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[Jimmy-T]

If you do a search on this website (especially in the Forum) for “code of conduct” and “standing orders”.

There is one item that’s common in a lot of standing orders (not just for strata committees) rules that an owner may not speak on an item again until everyone else who wants to speak has had their say.  That could be handy.

If you have a standing order that an owner can be “named” as disruptive in the minutes, subject to a vote of the committee in situ, that might curb some excesses – but I doubt it.

It may be that you need to establish your standing orders which includes expected standards of behaviour at your meetings – including the Chair’s right to rule someone out of order for not speaking to the motion – then pass a by-law to establish the legality of the standing orders.

Once that’s done, issue a Notice To Comply when the disruptive neighbour misbehaves.  You could even have a standing item on your meetings’ agendas to issue Notices to Comply for breaches of by-laws.

Issue the NTC and when they do it again you can seek fines and orders at NCAT.

However, the Act allows people to attend meetings and you interfere with that right at your legal peril.

By the way, when you are passing your “standing orders” by-law, be sure to include a clause that allows the committee to agree to record the proceedings.

Your noisy neighbour doesn’t have to give their permission to be recorded, they only have to be informed that a recording is underway.  I believe that if they continue speaking when they have been clearly informed that they are being recorded, they have effectively given permission.

A motion to allow audio recording of the meeting would be effective notice that the meeting was being recorded.

The recording of their disruptive behaviour can then be used as evidence at NCAT when you are seeking orders to get the miscreant to observe the by-law that enshrines the standing orders.

 

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[Jimmy-T]

IK wrote:

More information is needed on the source and cause of ‘your big water leak’.

Exactly. What happened, where and how?

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[Jimmy-T]

StopfordKid wrote:

why don’t all of the unhappy/aggrieved lot owners group together, call a special general meeting, replace the committee then proceed to replace the OC managers

If only it were so easy.  I can’t say if this is the case in this instance but, going by multiple experiences elsewhere, and not just in Victoria, if you have a tight cabal of owners running the strata committee, aided and abetted by complicit strata managers, they will do whatever it takes to prevent non-resident owners from finding out what’s going on, including refusing to hand over email addresses (usually on spurious “privacy” grounds) to people who want to change things.

This is exacerbated in Victorian buildings that have a higher-than-average number of short-term holiday lets in a mix of rentals (which tend to be more than 50 percent of the lots, in any case).

The investor owners don’t know what’s happening and therefore don’t care.  The committee cabal controls the messages going out – “everything’s fine except for a few ratbag residents trying to stir things up” – and the investor owners simply don’t get involved.

If there are rental agents in the mix, the investors are even less likely to know what’s happening and the threshold for calling an extraordinary general meeting can never be reached.

This might sound like a paranoid conspiracy theory but, trust me, it’s happening right now in strata schemes across Australia.  It’s just that we are seeing the effects – neglect, bad management and deteriorating buildings – vividly illustrated in Victoria.

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[Jimmy-T]

Just to be clear, the comments that I have made are not based on what strata owners in Victoria and only strata owners in Victoria do – it’s based on 20 years of writing about strata in NSW  and elsewhere in Australia and getting feedback from all over the country.

Victoria is not unique in having strata committees that will do anything to keep levies (fees) down or will keep owners in the dark about their decisions or neglect to maintain common property.  Far from it.  My point is that the situation has been ripe for exploitation and Victoria would be unique if no one was exploiting it.

I don’t doubt that you didn’t experience any of that in your strata schemes – I haven’t in mine – but other people have and do.  Just look at the letter – the one you criticised for wanting “strata cops” to come and fix the problem.  That is a very different experience to the one you had.  It doesn’t invalidate your experience and yours doesn’t make theirs any less believable.

And as for the committee decisions and minutes – that’s all fine if the committees obey the law.  But what happens when they don’t?  Call the non-existent strata cops? Or maybe pressure the government and ask them to make the law work for everyone.

That’s what we did in NSW and it’s now paying off.

For the record, my position is that strata schemes may have ignored basic maintenance and that led to leaks and internal deterioration.  People make small decisions with big consequences and as long as the owners think everything is OK, they tend not to want to spend more than they have to.

You description of the barriers to legal action is pretty much what I said – there’s no disagreement there.  If anything, if reinforces my point.

With your experience in strata you will know that only a small number of people want to even attend AGMs, let alone stand for strata committees.  People who do join committees do so for a number of reasons – some to serve the community, some to protect their investment and some to take that a stage further and make sure not a cent is spent that doesn’t obviously need to be spent.

Our correspondent wrote about a long-term maintenance plan that had no budget and therefore had never had any money spent on maintenance.  The Committee refused to communicate with them and they were fobbed off with excuses and complaints about their inquiries.

When the committee and strata managers hide information from owners,  a consequence is that owners don’t know what’s going on (obviously). Why then would the vote them off?

Unless you get involved, you don’t know how much is being hidden or misrepresented. And why would an average person who doesn’t realise they are being led up the garden path, get involved until the damage has been done?

That was our correspondent’s reality and she is not alone.  She and others in her situation don’t need strata cops – they need one of the many agencies that are supposed to protect apartment owners and residents – when a problem is brought to them – just to do their jobs.

As I said before – these issues are not unique to Victoria – what’s different is that it seems the Victorian authorities and many owners have zero interest in addressing them.

And as for my earlier comments about journalist putting these issues in the too-hard basket, I’ve written to a colleague at the Age offering them a cracking story and haven’t even an acknowledgement.

That’s how low a priority strata is in Victoria – it’s too hard and nobody cares.

 

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[Jimmy-T]

Regardless of what anyone else says on this thread, I think it’s best that you seek specialised strata legal advice.  That’s for two reasons – one to get definitive answers on what your rights and responsibilities and secondly so that your strata scheme takes you seriously.

But generally speaking, if there are documents and correspondence related to the strata scheme, as an owner you have a right to see them.

If anyone has any suggestions for a good strata lawyer in Victoria, please post them here.

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[Jimmy-T]

I respect your opinion, but I am far from convinced.  It seems to me that Victorian apartment owners are more excluded from decision-making than they are in NSW and that just makes it easier for small groups of self-interested owners to make decisions that affect the long-term value of properties.

The ABC report on the “rotting” buildings exposed by the flammable cladding remediation is, I suspect, the tip of the iceberg.  I am pretty sure many of these will be buildings where defects were not pursued and repairs were not undertaken while the owners were told that the main objective was to keep fees down.

It’s only recently that Victorian strata committees didn’t require a special resolution to initiate legal action.  I wonder how many suits against developers were avoided because they had enough votes in their pockets to block any action.

As for your scenario of decisions being delayed by owners being informed through the distribution of minutes and agendas, that may well happen in NSW (although the advance notice of meetings is barely a week).  But even if it does happen, surely that’s better than committees meeting in “secret” – I don’t know how else to describe people meeting where outsiders can’t observe them – and then refusing to share their deliberations with other owners.

The proof is in the pudding and if Victorian strata isn’t about to be revealed as having huge systemic problems, I will cover my favourite hat in chocolate sauce and eat it.

You might be interested in this week’s podcast when I post it on Tuesday – you get an honourable mention – but I suspect you will hate it.

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[Jimmy-T]

I have to say first up that this is complicated (obviously) and there may be issues of objections being “timed out”. I’ll leave comments on that to those with legal qualifications.

However, here is a principle related to attic conversions (and other acquisitions of common property) suggesting that the owners acquiring common property pay the strata scheme the difference between the value of the enhanced property and the original property, minus the cost of the enhancement.

This would normally apply to the people who want the gardens to be their private property.  If the loft conversion hasn’t been timed out, i.e. its legal status is still in doubt, then it is in the interest of the owners to get it established via a by-law otherwise the loft area is still common property, with all the potential conflict that might arise.

In fact, the downstairs neighbours might push the issue just to force the attic owners to come to the table and negotiate.

In any case, I think you need to separate the issues.  The people on the ground floor need to buy the garden from the strata scheme – and that will require a 75 per cent vote in favour – and the people in the loft may or may not need to do the same for their conversion.

If no one has a definitive answer – and I would suggest the ground floor owners and the attic conversion owners choose a mutually acceptable strata or property lawyer to provide the advice – then your strata scheme could maybe take it to NCAT as an uncontested issue, seeking a ruling on who owns what.

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