[Jimmy-T]

I still suspect that the reason there seem to be fewer problems with defects in Victoria is due to lack of transparencey – owners can’t even attend strata committee meetings, stata managers bring their own building managers and, until recently, strata schemes needed a special resolution to initiate legal action. And there’s also the fact that there are a lot more residential strata schemes in NSW and, as you said, more buildings were thrown up in a rush in NSW.

But as for which one is better than the other – I don’t think that’s relevant.  Each state has its own problems and as long as base our thinking on false equivalences – something of which I have probably been guilty, too –  progress will be hard.  Each also has its own solutions and that’s what we should be looking at.

But in regard to the cladding issue, the post from CBD3000 doesn’t paint a rosy picture of the situation in Victoria.

 

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[Jimmy-T]

Jimmy-T wrote:

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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[Jimmy-T]

esb wrote:

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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[Jimmy-T]

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:

1. 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).
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).
3. As an owner, I am entitled to attend all strata committee meetings.  (Schedule 2, Part 3, Section 13).
4. 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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[Jimmy-T]

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 law

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[Jimmy-T]

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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[Jimmy-T]

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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[Jimmy-T]

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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[Jimmy-T]

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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[Jimmy-T]

Austman wrote:

I read it.  VCAT published it, as is their prerogative.

And you don’t think the member was leaning towards allowing the charges, had they been properly pursued?

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[Jimmy-T]

Austman wrote:

How can an OC, an OC committee or an SM be responsible for something they couldn’t reasonably or even possibly be aware of?

I find it hard to believe that no strata committee, manager or owners were aware of serious leaks at any point in the history of these buildings.

Of course, they could not have known the extent of the issue and how much the fabric of the buildings had deteriorated – but for it to have been so bad as to cause this rotting from the inside, there must have been evidence of leaks that at some point have been ignored covered up (literally) out of convenience and a desire not to spend too much on repairs.

One of the developers cited in the story has a proven record of poor building practices but no one raised the alarm when the problems became evident.

Wilful neglect is not a uniquely Victorian issue – far from it – but the Victorian system seems to be stacked against owners who want to take action against “do nothing” committees and managers.

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[Jimmy-T]

Austman wrote:

there’s no guarantee …

Hence the words “probably” and “might well have”. To be fair, you didn’t have the benefit of reading the case findings because I chose not to link to it for reasons of privacy.  Our “no names no pack drill” policy is flexible but in this case I decided caution was the better part of valour.

However, I think the general tone was leaning towards allowing the charges if they had been properly formulated. The member certainly went to considerable lengths to stress that it was an option open to him, had the correct procedures been followed.

Austman wrote:

there have been many cases where VCAT has reduced the OC’s claimed charges or denied them entirely.

Any chance of a citation or link, please?

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[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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