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If the wall isn’t common property (which I find difficult to believe) then it is the other lot owner’s property and you should talk to them about fixing it.
I’m far from being an expert on Victorian strata law, but as a general principle, if a problem in property owned by another person or entity is causing damage in your property then they should fix it at their expense.
It’s not up to you to hire experts, apart maybe from an experienced strata lawyer.
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The strata managers sound as if they are in breach of their professional Code of Conduct. At the very least, these five basic principles:
1.3 DUTIES OF ALL MEMBERS
All Members must at all times:
i. Act ethically.
ii. Act honestly, be straightforward and sincere.
iii. Not provide false, misleading or deceptive information.
iv. Be objective, fair and not allow prejudice or bias to override that objectivity.
v. Be and appear to be free of any interest, which might be regarded as being
incompatible with integrity and objectivity.Sadly, though, you can’t make a complaint through the SCA about your strata manager being in cahoots with the committee since they will only accept complaints from committees. Nice “get out of jail free” card the strata managers have written for themselves.
In your shoes, I would still take a complaint against the strata manager at Fair Trading for deliberately offering misleading and erroneous legal advice. That will fire a shot across their bows and the very least and might be useful if you decide to go to NCAT and ask the Tribunal not to adjust the UEs in a way that hands total control to this one family.
I might even write a column about this in the AFR – no names, no pack drill, of course – see what that stirs up.
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You could appeal the decision. There are plenty of examples of people taking lost cases to the NCAT appeals board and winning on less solid ground than yours. You use the word “solicitor”. Are you employing an experienced strata lawyer? If not, that might be your next port of call.
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In your sentence ‘If the owner did want to pursue them for compensation, they’d have to prove that they knew the effect of the by-laws but decided to ignore it.’, Is ‘they’ the committee members or the owner who would have to prove…?
The apartment owner would have to prove that the committee members knew they (the SC) were doing the wrong thing. To do that, the owner would have to show that the committee members had read the by-law, were aware of its conditions and had chosen to ignore them. The apartment owner might (and I stress “might”) then argue that the committee members had not acted in good faith and were therefore no longer protected by the immunity provided by S260 of the Act (below).
I am not a lawyer but I would say that pursuing a claim against the individual members would be harder than taking a Section 232 action against the owners corporation (as represented by the committee) for failure to fulfil their duties. The owners as a whole might, hypothetically, then take action against the committee members for not acting in good faith.
There is still considerable liability resting with the owner who installed the floor and that might be the easiest recourse. That owner might then sue the committee on the grounds that they were misled. Either way, it could ger very messy, very quickly. I would speak to a lawyer before doing anything.
260 Personal liability
(1) A matter or thing done or omitted to be done by any of the following persons, or a person acting under the direction of any of those persons, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing functions as such a person under this or any other Act, subject any of the following persons or person so acting personally to any action, liability, claim or demand:
(a) an officer of an owners corporation,
(b) a member of a strata committee.
(2) Any such liability of an officer of an owners corporation or a member of a strata committee attaches instead to the owners corporation.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.
ACT strata law is very similar to NSW’s so I’m taking a punt here; generally speaking, unless they have delegated authority to do so, the strata manager should only be making payments that are authorised by the committee or owners corp as a whole.
So somebody is telling porkies; either the strata manager or a committee member who gave her the go-ahead and is now feeling the heat. Approval for expenditure over the phone should be done in emergencies only. Forgetting to tell the committee that you have lined up a contractor is not an emergency.
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Jimmy-T in your example, with 40 for, 40 against and 20 abstained, the motion would still fail though, right?
Depending on the unit entitlements, yes. But in that situation, someone on the “losing” side would surely call for a poll vote in which UEs would be counted. And according to the Act (but not the chair of my building) you can call for a poll vote at any time during the meeting, whether the chair has declared the voting closed or not.
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As I said before, just go through the normal processes to inform the committee about your plans to renovate the bathroom. I wouldn’t even mention the access (now no-access) hatch and get their approval. Sounds like it’s time to move on, on this.
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I came across a document from the NSW government’s Building and Construction Policy team
It would help if you could provide a link to the socument you are quoting …
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The owner nominated themselves as a proxy…
Not sure what this means. If they are an owner, why would they also need to be a proxy?
Just to clarify, in Victoria and NSW any owner can nominate themselves or they can nominate a non-owner as their proxy. In either case, if there are more nominations than seats, there would be an election.
Once the committee has been elected, its members choose the chair. Office-bearers can be any validly elected member of the committee.
If you have a problem with a non-resident being chair of the committee, the time to raise that is at your AGM , when you and other owners can stand for election. About half the strata properties in Australia are owned by non-resident so having non-resident committee member is not uncommon and having them as office-bearers is neither illegal nor necessarily a bad thing (although I wouldn’t recommend it).
FYI: Proxies only last for one year and would have to be renewed in writing.
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strata law is generally about the building, and doesn’t really help with difficult residents.
Not sure about that. The model by-laws have clauses relating to noise and, more generally, “Behaviour of owners, occupiers and invitees” (below). Most schemes will have by-laws like this and if they don’t have them at all, then I believe the model by-law applies by default. Registered, valid by-laws are as good as strata law, when push comes to shove.
The committee or strata manager could send a warning to the residents that they are in breach of the by-laws and tell them the next notice will be an official “Notice to Comply” which carries potential financial penalties. But they could just send a Notice To Comply directly – there is not need to send prior warnings.
If they are tenants, then they should be warned they could be evicted as a breach of by-laws would be a breach of their lease agreement.
As far as damage goes, if the strata committee can prove it, they can send them a bill for fixing it and if they don’t pay, take them to court (not NCAT) for reparation.
6 Noise
An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property7 Behaviour of owners, occupiers and invitees
(1) An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment to the owner or occupier of another lot or to any person lawfully using common property.
(2) An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier:
(a) do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property, and
(b) without limiting paragraph (a), that invitees comply with clause (1If 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.
I think that given your previous contacts with the strata committee on this, you could just go ahead and send them a detailed plan of what you intend to do (which you need to do anyway) and then if they do need to get access to the pipes at some point in the future, you can say they must have known and it’s down to them to pay for the repairs or, even better, find another access point.
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This from our friends at Bannermans Lawyers:
The legislation allows for the variation of liability for common property expenses under section 78 of the Strata Schemes Development Act 2015.
It does not however provide for any variation in voting rights. Therefore voting is calculated in the usual manner, including the developers lot and unit entitlement. The usual restrictions on voting by the developer apply.
Your biggest problem may be that your developer has someone working for them who knows every sneaky twist and turn in the legislation. However, that conveniently massaged Unit Entitlements figure could come back to bite them on the bum when they come to sell the unit – provided any prospective purchaser knows about it.
As for costs at NCAT, if they lose the owners corp must raise a special levy for costs of actions taken or defending their position, which excludes the person they have defended or taken the action against. Make sure your other owners have signed up for the case so they can be excluded too. Also, if they have chosen to defend a case when they know they have no chance of winning, or have obstructed the case in any way, they can have costs awarded against them.
Make sure they are aware of this before they get to NCAT – perhaps during the mediation process.
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I have a couple of questions. Firstly, I’m interested in your comment above “Until the owner has sold more than 50 percent of the units, the voting power of their unit entitlement is reduced to one third of the actual figure.” – which legislation specifies this, and exactly where can I find it in that legislation?
Strata Schemes Management Act 2015 No 50 – NSW Legislation
Schedule 1, Part 314 Decisions at meetings(1) Simple majority vote to generally apply
A motion put to a meeting, or an election of officers of the owners corporation or members of the strata committee, is to be decided according to a majority in number of the votes cast for and against the motion with each person having one vote for each lot in respect of which the person is entitled to vote.
(2) Vote of original owner who owns more than half of lots to be reduced
For the purposes of determining an election for officers of the owners corporation or members of the strata committee or appointing a strata managing agent (other than in the case of a poll), if the total unit entitlement of lots of the original owner is not less than half of the aggregate unit entitlement, the value of the vote in respect of the lots held by the original owner is taken to be reduced by two-thirds (ignoring any fraction).
(3) Value of votes to apply for poll
If a poll is demanded by a person present and entitled to vote on a motion or for the election of officers of the owners corporation or members of the strata committee at the meeting, the motion is to be decided according to the value of the votes cast for and against the motion and the value of a vote cast by a person entitled to vote in respect of a lot is equal to the unit entitlement of that lot. However, the value of the vote of an original owner is to be calculated in the same way as for a special resolution.
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Once that space has been allocated, it can’t be used by visitors. Wouldn’t that be a breach of the approval conditions and hence illegal?
If a certain number of visitor spaces were designated in the approved DA, then it would be a breach. Also, the strata committee or OC has just handed a gift to one owner of a valuable piece of real estate which is incompetence at least and corruption at worst. Someone needs to tell them to pull their heads in. If they don’t, run a section 232 through Fair Trading for mediation and see if they like the idea of NCAT sifting through their decisions.
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