[KAlice]

Hi Tess,

Thanks for your post. I have taken a while to reply as this whole experience had been so dispiriting.

After thanking the SC for their response, I informed them I disagreed with their reasoning and would proceed to mediation.

Well then the legal guy (LG) on the SC started in. I think his initial intention was to overwhelm me by his ‘legalese’ ( although couched in terms of wanting to better understand the situation). LG has been cherrypicking and twisting words, and asking inane ‘ lawyerly’ questions that are very time consuming to answer. The subtext seems obvious…

LG even used my single use of the word ‘agreed’ to suggest that I was responsible for the consequences of the balustrade needing remediation. ( The ‘ agreement’ was in relation to work already done and for which I was informed there was no alternative.) 

Anyway, if anyone has any relevant cases or other suggestions of where to look, that would be great. I’ve looked through all the Strata cases on the NCAT site. I can’t find the tile cases there, although I have found some references to them in some discussion threads.

Any input would be appreciated.

[KAlice]

Hi,

Well, despite me showing them the legislation, your opinion and a real estate agent’s opinion that the terrace was the most valuable part of my lot, they have turned down my request for the OC to pay for replacement panels to make the top of the glass barrier even. I will take it further as you suggest as I think there is an important principle at stake.

Would anyone care to comment on their reasoning (especially underlined section) as it would help me in the mediation process:

“In addition to this we believe that the Strata Schemes Management Act 2015 – Section 106 in regard to the issue with the glass panels should be interpreted as follows.

Paragraph (1) and (2) of Section 106 state that the Owners Corporation must properly maintain and keep in a state of good and serviceable repair common property. This extends to fixtures and fittings (such as the glass panel) which must be renewed or replaced if required to properly maintain and keep in a state of good and serviceable repair common property. 

In regard to the glass panel this means that the non-compliant glass panel needs to be replaced – even though it is in perfect working condition – as it is not compliant with regulation. Paragraph (1) and (2), however do not apply to the other, compliant glass panels as they are not only in perfect working condition but they are also compliant with all relevant legislation and as such the requirement to properly maintain and keep in a state of good and serviceable repair does not apply to them. 

Paragraph (3) details under which conditions an Owners Corporation may decide to not maintain or repair common property. This section is not relevant in regard to the issue of the glass panel as we are not seeking an exemption from the obligation to maintain common property but are intending to replace the non-compliant glass panel.

We are aware that the obligation to properly maintain and keep in a state of good and serviceable repair common property has been held in a variety of cases to extent to aesthetic concerns (although different scenarios where a repair was otherwise under consideration), however as detailed above we do not believe that replacing the non-compliant glass panel with a slightly higher glass panel will raise aesthetic concerns and as such there is no obligation for the Owners Corporation to replace the compliant glass panels. Having said that, we would have no objections to consider a proposal to replace the compliant glass panels at your own cost.”

 

Many thanks

[KAlice]

Many thanks. I’ll let you know the outcome.

Cheers

[KAlice]

Hi Jimmy,

Perhaps not as reasonable as I claimed…but I don’t doubt that they’re well meaning.

The feedback I’ve received is that I’m probably being unreasonable for wanting the OC to be responsible for ‘aesthetic reasons’. I pointed out that the Act directly references ‘appearance’. All I’m asking for is that my glass barrier looks as close as possible to its original condition at the conclusion of the work. 

As I’m a novice at this process, can you please give me some direction as to my next steps.

You said “their decision not to line up the glass affects the look of the property so that’s a decision they are not entitled to make, whether by a simple majority or even a special resolution.” What is the process from my POV if they only want to be responsible for the single glass panel? Do I challenge the decision (and how)? Do I apply for mediation straight up? A strata lawyer has been suggested, but is that necessary in a situation such as this?

Sorry if these are very basic questions. One hopes to never be in this type of situation, but being able to ask for advice like this is fantastic.

[KAlice]

Many thanks for such a prompt and comprehensive reply.

Would those ’tile cases’ be available via NCAT, if I need to reference them? I had read about them before, but couldn’t locate them when I was trying to google info regarding my issue.

[KAlice]

Thanks for your response.

The glass panels were installed by the builder at the time the original building was converted to strata (so neither I nor the OC).

To explain: the terrace is spilt level, with the upper level being about 300 mm higher than the lower level. The surrounding parapet is a constant height, so the glass panels were installed to 2 sides of the terrace on the upper level where the parapet height was insufficient to comply with regulations. 

Remediation work is currently being carried out; to ensure integrity of the waterproof membrane, the floor level of the upper terrace must be elevated by about 150 mm over a small area. At this point, the barrier height is less than 1 metre from the floor level. The suggested solution is to replace the single glass panel at this point with one that is 150 mm higher. There are presently 4 glass panels along this section, so this would leave me with a balcony edge with one panel jutting up over the rest (obviously not a good aesthetic solution from my POV).

I have been told that I can pay to have the other 3 panels replaced if I want a straight edge to my terrace wall. This is about 2K. However, I feel this may be a strata responsibility, to ensure that necessary remediation of OC property does not adversely affect the value of my lot.

I would value an informed opinion here…whether I should suck it up or pursue my rights (if I have any). 

Many thanks.

[Author]

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