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Their are too many unknowns to start with. The main one is whether it is common property or lot property and everything else depends on the ans to this question.
Your owner should have a copy of the strata plans so he is the one to ask because if the OC are trying to take away his courtyard he won’t be a happy camper.
An alternative is to obtain a copy of these plans from the Stata Lands dept for less than $20 yourself.
As to the bylaws their relevance depends on the above but you should have been given a copy of the bylaws by your Rental Agent on signing the rental agreement (see section 35 of said agreement) and if not ask for them now from your rental agent.
@taps said:
do we put the tap back? (even though it’s illegal and request that the owner pays if anything goes wrong with said tap by way of a letter from the owner)
NO
The tap was never approved or fitted by the OC if you refit it the OC is accepting ongoing responsibility for the tap and pipe because it is fitting it.
The OC was perfectly entitled to remove common property that was not up to standard that the owner wasn’t prepared to pay to upgrade (at very small cost).
Tell the owner that if he wants the tap back the OC require a bylaw stating that he accepts full responsibility for the installation and ongoing cost of said tap as well as paying for a suitable bylaw to be registered (approx $1,000).
This is the official way of changing common property in NSW and if he contests it at NCAT I believe he will loose. You can then be generous and tell the owner that if he just pays for it to be installed he can forget the bylaw but if he causes subsequent problems the OC will disconnect the tap permanently (this the OC would have to pay for unless they fit an on / off valve outside his lot that can isolate his extension at will).
@Whale said:
The fact is that once a pipe or indeed any item is attached to the common property (wall) such that the property would be in some way left damaged should that item be removed (in this instance by masonry fixings), then that item becomes part of that common property.
I sorry Whale but I don’t agree with this sweeping statement that anything attached to common property automatically becomes common property.
If that was the case then fitted kitchens and bathrooms (in fact anything att to a common wall inside the unit) that happen to be att to a common wall would be considered common property which they patently are NOT.
Both fitted kitchens and gas pipe are att to the common property and in the lot air space.
@Boronia said:
Common sense says that if you are driving a car and collide with a stationary vehicle, regardless of whether it is parked legally or not, you would be responsible.I looked into this and I have to agree with Boronia the driver of the moving vehicle would be totally liable for any damage even if their was a bylaw trying to transfer the responsibility because the bylaw would conflict with the road traffic act.
I don’t agree with Whale on this.
If this was an improvement and not an original feature then if their is no bylaw ref it and the owners claims it’s common property and so the Strata are obliged to repair it, the strata can vote to just remove it unless the owner pays for the repair.
Strictly speaking a bylaw would be required to regularize the situation but this seems extreme as the owner will now realizes, he fixes it at his cost or it’s disconnected.
The problem you have is your the only one affected in your Strata. I’m not familiar with WA Strata rules but I would assume they are similar to other states.
To enforce the noise bylaw you (or the strata or SM) would have to go to conciliation and then adjudication to get a ruling against the offender.
Problem is this is time consuming but cheap if you DIY or someone from the Committee does it. If the SM does it they will charge for time and expense (our SM estimated they would charge on average $5,000 5 years ago for a simple ruling).
So unless the Strata is very generous using the SM is out (and a Strata lawyer would charge even more) so it’s either find a knowledgeable neighbor or become a fast learner.
@qwerty said:
Hi.I need the magic formula, would that be on the DA?
Regards
Unlikely
What on earth for it’s only advisory the important number is in the DA which the council specified when approval was granted. The current formula is meaningless because you are talking about a DA from 1989 to reduce the number in the DA you would have to get the council approval via an amendment to your DA.
The formula is just a guideline and actual number specified would depend on the actual development.
You can obtain the number of Visitor Spaces from the Development Approval for the Body Corporate which the SM should have or from the council records.
Even if a bylaw is passed to tow ONLY resident vehicles can be towed because to tow a vehicle requires the drivers permission and as it’s a bylaw and all resident must comply with the bylaw the permission to tow is implied.
As I’ve said I’ve never seen a court ruling supporting this premise or rejecting it so it’s a bit in the air. You have also got the problem of getting a tow company to actually tow the vehicle because they could be accused of theft if they tow a non residents vehicle or even a residents vehicle if the resident take the issue to court.
This issue is legal nightmare.
A better solution is to go the conciliation and then adjudication and if they continue to park in the visitor bays a magistrates court can fine them a max of $44,000 plus costs.
It’s not easy to tow or clamp residents vehicles in any State in a Strata situation.
Why is your Body Corporate going to magistrates court as the fist steps are conciliation and then adjudication (as in NSW). Have they done this already and got a ruling.
Towing is virtually impossible without a well written bylaw in place and warning signs that residents are subject to said bylaw is this the case in your Strata? Evan with these features in place it is debatable whether towing is allowed and I’ve never seen a decision by a court to either support or oppose this ability.
I believe you will be ok.
The adjudicator says
Long story short – The adjudicator has ordered the installation in the location that I have requested and found the SM unreasonable in their refusal of my request.
So a bylaw that conflicts with a ruling would be very unlikely to be enforceable and that is the crux of it. They can pass any number of bylaws if they have the numbers but their (of the bylaw) validity is not checked on registration it is only tested when they go to adjudication.
When you won at adjudication you must have had a valid case and that case hasn’t changed just because the Strata have moved the goal posts. But as Whales says get it installed before the new bylaw and then they would have an even harder battle.
I agree with Tharra the debit belongs to the lot and if it is sold with levies outstanding then the new owner is liable for all outstanding debit and penalty interest if any.
Making sure their is no debit outstanding is one of the jobs of the buyers solicitor.
@JimmyT said:
That is quite an assumption to make and would not stand up in a court or a tribunal.
This is what the “who is responsible?” document says about dividing fences:
The drawing for our complex are a mess, all the boundaries are solid black line (even fences between lots) and so are Strata responsibility.
The walls, doors and windows facing the private gardens are thin lines so owner responsibility except for the upper floor of the townhouses which are all solid lines indicating Strata responsibility.
This is clearly contrary to the gov intention (especially as regards the fencing act) which is why I think they were drawn by a trainee after a liquid lunch. If we passed a bylaw accepting the fencing act as defining the responsibility for the fences would that override the plans or would we have to get the plans redrawn as well.It’s legal in QLD once a motion has been passed to authorize email at an AGM.
BUT each individual owner has to opt in (as you state) otherwise what happens to people who aren’t internet aware.
Sounds to me like your SM is trying to increase his profits by saving on postage and printing but I bet the saving won’t be passed on to the owners.
Find out from your Strata insurance company if running a holiday let requires a premium to be paid for this to continue, if so the owner of the lot is fully liable for any insurance premium increase due to this activity.
I agree that in theory paid parking within a complex is a good idea, the problem comes in collecting the money that people agreed to pay to be allowed to park their.
Would the fees be considered as part of the levy and so collectable under the rules governing levy payments (virtually impossible to avoid).
OR as a general payment with very poor chances of forcing a reluctant resident to pay.
Also who is going to administer it because allowing non payers to park their will antagonize those who do the right thing and pay.