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MsM said
I’ll need to check on owner’s corporation – if they approved tiling throughout. I strongly suspect they didn’t. Can the Strata Manager confirm this for me?
The strata manager should be able to confirm this for you. You also have a right to inspect the books and records of the owners corporation and could arrange this through the strata managing agents. A look through the minute book will confirm if approval has been given.
Minor settlement cracks are common and are usually treated by the application of a flexible sealant prior to carrying out normal regular painting (as part of the normal preparation for painting).
It follows that any internal painting of the unit is the lot owners responsibility and this should be taken care of by the lot owner with their standard maintenance of their lot.
However – take care not to always label the cracks as cosmetic as if they are constant and continuing to get works (whether in one unit or more) they could be an indicator of other significant issues. In this circumstance, ignoring the request of the other owner could lead to liability issues further down the track.
Like KP, I also disagree with Whale’s interpretation of what is considered a “lot owners fixture” when it relates to an insurance claim. A lot owners fixture does not need to be a new addition by a lot owner but will include existing cabinetry, basins, wardrobe doors etc, despite the fact that they are not common property. They key point will be whether the event that has caused the damage is an insurable event under the policy.
Enough from me on this as well. As always – refer to your PDS and seek the advise of your broker/insurer.
As for the need for a by-law, it is impossible to say without reading the description of the “stratum of the lot” for the courtyard as stated on the registered strata plan. It may mention the hard floor surface, or may include cubic space up to several meters below the ground floor level of the unit where there is no concrete slab below.
However, as Whale quite rightly points out, there will clearly be a change to the outward appearance of the lot (unless there a 10 foot high fences) and at this point the EC should be asking for assurances regarding liability.
I am also curious about the council DA approval as most councils will require any application where the lot is within a strata scheme to be approved by the OC and the common seal applied to the forms.
The use of a reputable firm such as Makinson d’Apice is highly recommended. However, make sure you;
- ensure they disclose any conflict of interest (as it will not be uncommon for strata law firms to be representing your agent on other matters, and
- step out the process to you regarding what methods of approval are required under the Act in your state (you do not want a case to fall over in the future due to not having the correct approvals to commence action – this will include resolutions to obtain advice as well, not just commencing action)
Also you will need to ensure your building report outlines the cause off the membrane failure. The 10 year warranty will likely be on the failure of the product used (manufacturers warranty) however if the issue was with the poor/incorrect application of the membrane by the contractors this may have a shorter warranty (builders/contractors warranty).
Did the previous owner obtain permission from the owners corporation to adhere tiles to the common property floor slab? Was a special by-law registered giving approval for the changes to common property?
If the answer to these is no then you need to demand that the owners corporation address the issue.
If there has been an agreement through CJC(CTTT?) for them to place down floor rugs it seems that the problem has been identified. If this has had no effect then you should take the next stage and demand that the floor is returned to it’s original (presumably carpeted) state.
If the leasing agent has arranged the works without going through the proper approval channels and if this is the same agency who is the strata manager there is a significant conflict of interest here.
If the strata manager will not recommend to the owners corporation to initiate action via the CTTT then you should go straight to the executive committee.
It is likely that this is not only a breach of s117 but of 65A also.
Unfortunately this is a really common issue in apartment buildings. A part of the problem is that (from my understanding) the BCA only says that “habitable” areas need to be waterproof and a car parking space is not considered a habitable space. Unless the construction plans originally called for a waterproof membrane to be installed it may not be considered a building defect.
The installation of evaporation trays is a very common “solution” also as the likely cost of waterproofing the top side of the concrete slab is often seen as prohibitive.
Evaporation trays will work only if the volume of water being caught by them is small so it has a chance to dissipate before the tray overflows. Ideally there should be by some sort of overflow or drainage pipe directing the water away from the car space.
It may not be an ultimate solution but it should be quick and relatively easy one to carry out.
@mattb said:
It is a requirement to have working fire alarms, and they are common property.Fire detectors inside an apartment are only common property if they are hard wired 240V alarms. Battery operated ones stuck on the ceiling are not (such as those in JT’s apartment).
If the system was recently installed, it is likely that the current BCA requirements would ensure that it is a monitored system. The consultant who designed and oversaw the installation should have advised the OC of these requirements. They should also have ensured that the detectors are situated in a suitable location outside bedrooms (not bathrooms).
In your case it appears that the rectification of the issue is definitely an OC issue and if the false alarms are not caused by your actions then you should not wear the costs.
FYI – NSWFB have been charging $750 for false alarm call outs but this has just gone up (or is about to go up) to $1250. This is charged to the alarm monitoring company who will then invoice the OC with an additional admin charge.
I also agree with KP & Whale.
I have also heard it argued that the application of a tinted transfer on the inside of the glass is considered to be similar to the application of paint on your internal walls (i.e. it is within the cubic airspace of your lot). I do not know if this argument has been tested at the CTTT.
Additionally, although solar tinting makes great sense for a number of reasons, approval in some buildings is hard to come by as the tinting will often change the appearance of the buildings exterior, especially where reflective tinting is used.
Interestingly, if he glass is being replaced due to cracks or breakage or another insurable event, then it could possibly be claimed on the owners corporations insurance. The insurers in this case usually pay for the glass to be restored to its previous state (i.e. with tinting).
Whale said
So actually, the answer to your question is NO, neither the Executive Committee nor the Strata Manager can grant permission for exclusive use.Except on a temporary and non-recurring basis.
Hi Slap Shot,
On what basis are you requesting the owners corporation to lodge an insurance claim? The Owners Corporations insurer are unlikely to get involved unless there has been any damage caused to common property. They will then only pay for the repair of damaged common property once they are certain that the cause has been rectified (evidenced by a tradesman’s invoice etc.).
The core of the issue you need to get to the bottom of is what is causing the excess moisture which may be caused by a raft of problems (not all of which will be the owners corporations responsibility to repair).
It is not uncommon for executive committees to want to inspect an issue prior to authorising the strata manager to engage a contractor in order to keep a check on expenditure incurred by the SM on their behalf (as can be witnessed by many concerned posts on this forum).
Now, if the EC members who made a visual inspection could not see a visible problem, I would recommend arranging for your own inspection of your unit. Once you have a professional opinion on whether there is: 1) a problem existing, and 2)what is the cause and solution to this problem; you will be in a very strong position to demand the owners corporation to rectify (if appropriate).
If the repairs and/or damage turn out to be claimable under the owners corporation’s insurance policy, then the strata manager should lodge a claim on behalf of the owners.
Please be aware that the most common cause of damp problems in apartments are the result of poor ventilation – especially in older buildings.
Good luck.
Struggler,
If the EC will not Act you should ensure that both matters are resolved at the next general meeting.
Submit a written request for two separate motions to be added to the next general meeting:
- “That the Owners Corporation lodge an application in the CTTT for the owner (insert name) of lot (insert lot number) to reinstate the common property to its original condition due to the damage caused to common property by the unapproved renovations.”
- “That the Owners Corporation carry out their obligations under s.62 of the SSMA by way of arranging for the recoating/repainting of all common property security screen doors currently in a state of disrepair.”
Let the EC deal with the trivial matters such as folding cardboard boxes but if the refuse to deal with the important issues then let all of the owners decide.
P.S. You may wish to ask for a second opinion re the wording of the above motions to ensure they will be adequate for your purposes (I am not a lawyer).
Bette,
The problem is that there is no way for the owners corporation knowing that the payment will actually go through correctly and not bounce back. This can be said for EFT or cheque payments.
Whale refers to a “Proxy “in the form prescribed”” by the Act.
I wonder how it would be viewed by our esteemed strata lawyer friends if an on-line voting form was set up that looked just like the prescribed form with the insertion of the voting “buttons” and if once submitted would generate a pdf copy for the secretary to print out and take to the meeting. The form would need to specify the proxy being given to say the chair of the meeting.
Anyway… just a thought.
Whale & Welly,
The way I see it, if the planter box is indeed common property (whether or no it is affixed to common property) then it’s removal would be considered to be altering common property. Therefore this would IMO require a special resolution under 65A.
KP – I believe that Investor13 is probably referring to a claim against the Home Owners Warranty Insurer since we are talking about failure of waterproofing membrane – not a claim against the OC’s building insurance. Temp. accom. is usually offered by the building insurance only where the damage being rectified is due to an insurable event. Specifically, building defects will not be covered.
Investor – Statutory warranties under the Home Building Act mean that it is the principal contractor (builder) who is responsible for rectifying defects, (usually) not the developer (unless it was a developer/builder).
Depending on when practical completion of the building was, it is likely that the Home Owners Warranty Insurer will only pay out a claim if the builder becomes insolvent.
If the building is insolvent and the HOW claim is valid then I do not see where the developer comes into it?
The defect claim & rectification process is a legal minefield and it is clear that you need to obtain legal advice regarding your individual circumstances.