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@bearforce1 said:
I suppose what I would like to see is a some sort of formulaic method to based on health and safety determine the restrictions on number of people residing. This would remove any subjective quibbling and provide people with an objective reasoning they can understand and hopefully be happy with.It was advised by the planners at Sydney Council have decided to leave out number or residents because each building is different, floor ratios etc. It will be interesting to see how different OCs decide to limit residents and on what basis.
It’s one of those perennial problems (becoming almost daily now though!). Most Council consent conditions issued these days provide for an occupancy limit of, say, 2 adults per bedroom. We consider that a by-law that provides that occupancy is limited in that way falls within the provisions of section 43 of the Act and does not fall foul of section 43(4) (a by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law) or section 49(1) (No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot).
What it does is regulate occupancy but does not prohibit or restrict leasing – any more than any other by-law restricts leasing by, for example, prohibiting the keeping of animals (can’t lease to someone who wants to bring their pet with them).
Beverley Hoskinson-Green
Partner | Makinson d’Apice Lawyers
This is a really difficult issue. It is an example of where the common law and the Strata Schemes Management Act can really clash.
On the one hand, the Owners Corporation must carry out its mandatory statutory obligation to repair, maintain, renew and replace damaged common property. It has no choice.
On the other hand, the lot owner is entitled to be protected against damage it sustains at the hands of another, in this case, the Owners Corporation.
There is nothing in the Strata Schemes Management Act that excludes the operation of the common law with respect to the performance by the Owners Corporation of its statutory obligations. That then gives rise to the peculiar position where the Owners Corporation has to undertake work to meet its statutory obligation, and in so doing causes inconvenience, and in this case loss, to a commercial landlord.
The commercial landlord having suffered the loss has probably two options open to it. The first option is to sue the Owners Corporation for loss arising out of the disruption to the business because of the work being done on the common property, and the second option is to lodge an insurance claim for the loss it has suffered. In fact, what normally happens is that the landlord would lodge the insurance claim first.
When the insurer pays out on the claim (presuming there is a relevant policy in place), the insurer can then look to recover its loss (which is the amount that it has paid out under the claim). That means that the insurer can sue the Owners Corporation.
If he landlord doesn’t have any insurance, then the landlord would naturally turn to the Owners Corporation to compensate it for the damage caused by the disruption to the business occasioned by the Owners Corporation doing work on the property. There is no protection afforded the Owners Corporation within the provisions of the Strata Schemes Management Act to ameliorate the unintended consequences on an Owners Corporation that causes loss and damage to a lot owner consequent upon undertaking the mandatory duties set out in Section 62.
Indeed, it’s fair to say that section 65(6) recognises the liability of the owners corporation to repair any damage it does when accessing a lot to carry out work. While that is specifically spelt out in that section to deal with owners corporations exercising a power of entry etc., the principle is the same: put simply, if you do the damage, you’re liable to fix it!
In short therefore, the Owners Corporation faces the real risk of a suit against it by the landlord that suffers loss and damage and there is no protection in the Strata Schemes Management Act to protect that Owners Corporation. The common law, in an instance like this, is where we look to inform us of the rights of the relevant parties, and in this instance the common law would, we consider, operate to give the landlord a right of action against the Owners Corporation of the loss.
Is this more than you really wanted to know?
Best regards,
Beverley Hoskinson-Green
Partner | Makinson d’Apice Lawyers
T +61 2 9233 9076 | F +61 2 9233 9120
Level 10, 135 King Street, Sydney NSW 2000
We sympathise with StrataGuru Struggler (reported by Jimmy Thomson in his article in Domain in the Sydney Morning Herald on 29 January 2013) and the desperate measures that have to be undertaken by frustrated owners faced with cars parked on common property in breach of the by-laws. In our experience, some of those illegal parkers are in fact owners or occupiers in the strata or community scheme itself; but we have seen a number of instances where the illegal parkers have no relationship to the strata or community scheme at all. What generally attracts these people is the proximity of the strata or community scheme to a transport hub, be it train or bus, or the local shopping strip, restaurant, café or pub.
We have long advocated that owners corporations must be empowered to remove or wheel-clamp illegally parked cars. To achieve this requires a very simple amendment to either the Local Government Act 1993 or the Strata Schemes Management Act 1996 (and its counterpart Community Land Management Act 1989) to exempt strata and community schemes from the prohibitions against wheel-clamping and towing of illegally parked vehicles.
We think that there should be some qualification to guard against vexatious abuse of wheel-clamping and tow-away powers. That can be done by requiring the owners corporation to issue at least one warning (which could be done by means of a notice on the windshield or affixed to the driver’s side window) coupled with prominent display of signs warning that cars parked illegally will be wheel-clamped or towed. Then if the vehicle is not removed, or is parked again on the common property, the owners corporation should have the power to wheel clamp and/or have it towed away.
Currently we can achieve part of that by means of a by-law; but only owners and occupiers are bound by the by-laws – visitors are not.
The ability to wheel clamp a vehicle should not be dependent upon whether or not the owner of the vehicle is an owner, occupier or visitor to the strata or community scheme. Any vehicle that is parked illegally on common property should be susceptible to being wheel-clamped or towed.
You’d only have to do it once or twice in a year – the sight of a wheel-clamp affixed to an offending vehicle would not only concentrate the mind of the offending owner but serve as a very clear warning to others.
If a lot owner has the benefits of a special privileged by-law, those special privileges cannot be amended or rescinded by an Owners Corporation without the consent of the lot owner affected.
Usually, lot owners who are the beneficiaries of valuable rights such as special privileges do not give consent to their amendment or repeal. This means that the Owners Corporation would need to make an application to the strata schemes adjudicator seeking order that the owner has unreasonably refused to consent to the repeal or the amendment of the by-law concerned. At first instance, the Owners Corporation would need to apply for mediation with the lot owner affected before moving to an application for strata schemes adjudicator’s orders if mediation was unsuccessful.
We note that mattb refers to compensation to be paid to an owner who is losing a special privilege. While we think there is no obligation on an Owners Corporation to offer compensation to a lot owner from whom the Owners Corporation wishes to take away its special privilege or amend a special privilege by rescinding or amending a by-law, compensation may be the sweetener which elicits the co-operation and consent of the lot owner affected by the rescission/amendment to the by-law.
We have read the comment from Petard – the first question that needs to be answered “who owns the dumb waiter”? If it is common property, and not subject to an exclusive use by-law in favour of the upstairs lot, then the Owners Corporation itself needs to repair the dumb waiter so that it doesn’t make any more noise. If the dumb waiter is owned by the upstairs lot or is subject to an exclusive use by-law which contains a clause imposing the obligation for repair and maintenance on the owner of the upstairs lot, then the owner of the upstairs lot must be required to repair the dumb waiter so that it stops making the noise. A further variation is that the dumb waiter may be subject to an exclusive use by-law which imposes on the Owners Corporation’s responsibility for repairing and maintenance. If that is the case, then, once again, the Owners Corporation will be responsible for the repair and maintenance.
As to obtaining an injunction, we sympathise with Chris’ approach; however it may prove somewhat problematic with injunctions generally not being available in circumstances where an applicant is seen to have agreed to work being undertaken or delayed in taking any action.
This is only very general advice. You should seek specific advice prior to taking any action – or allowing the matter to continue without taking any action.
We entirely agree with Jimmy’s advice. It may be useful for you to engage a building consultant to walk around the building with you and provide you with a detailed list of repair and maintenance items that need to be attended to.
The law is very clear in relation to the obligations of Owners Corporations to repair and maintain common property, which is set out in section 62 of the Strata Schemes Management Act 1996.
In approaching, at first instance, the strata schemes adjudicator for orders that a compulsory appointment of a strata manager be made, that appointment is made under section 162 of the Strata Schemes Management Act 1996. It is one of the few areas where an owner making an application (such as you) does not have to go through the hoop of mediation prior to making the application for a compulsory manager.
As Jimmy says, its amazing how such applications can shift the mind sets of recalcitrant Executive Committees.
Dear Struggler
In a perfect world an owners corporation would be well run, the executive committee would have training and a working knowledge of the relevant legislation and all owners would want to protect and enhance their investment by getting involved. Unfortunately, some owners do take the ‘it’s someone else’s responsibility’ approach. An owners corporation has a strict duty to maintain common property and you are within your rights to insist the work be completed. You can take legal proceedings to force the owners corporation to conduct the work if necessary however we find that sometimes our approaching the strata managing agent and executive committee pointing out the duty to maintain property under section 62 of the Strata Scheme Management Act 1996 coupled with a promise that an application will be made to the strata schemes adjudicator to install a compulsory strata manager works wonders and commencing proceedings is not necessary.
Dear Newbie,
The short answer is that if the owners corporation undertook repair work to the common property, and in the course of that repair work, lot property has been damaged then the owners corporation is responsible for remedying this damage as its agent, in this case the window repairer, caused the damage.
Similarly, if a common property defect such as water penetration causes damage to lot property such as carpets then the owners corporation would be responsible for repairing the consequential damage to the carpets.
In your situation, the owners corporation should insist that the contractor who conducted the window repairs comes back to site to repair the damage caused. Keep pushing!
All the best,
Makinson & d’Apice
Hello Jimmy & Byron Twain,
To make it easy for you, below is a checklist as to what by-laws apply to your strata scheme (if you are in NSW).
What by-laws apply to your scheme?
1. If your Strata Plan was registered before 1 July 1997, the by-laws set out in Schedule 1 to the Strata Schemes Management Act 1996
PLUS any additional by-laws registered (and not repealed or amended) in respect of your strata scheme before or after that date.
2. If your Strata Plan was registered after that date, the by-laws specified by the developer as applying to the strata scheme on registration of the strata plan. These can be either:
- the model by-laws set out in one of the schedules to the Strata Schemes Management Regulation. The model by-laws for residential strata schemes are set out in Schedule 2 to the Regulation; or
- other specified by-laws – usually referred to as “Developer By-laws”,
PLUS any additional by-laws registered (and not repealed or amended) in respect of your strata scheme after registration of the Strata Plan.
3. If your Strata Plan was registered with the model by-laws, the version of the model by-laws that applies is the version that was current at the date of registration of the Strata Plan. You can obtain a copy of that version from the AUSTLII website by clicking on the point-in-time version of the Strata Schemes Management Regulation.
4. The Strata Schemes Management Regulation is repealed and remade every 5 years. The current version is the Strata Schemes Management Regulation 2010 which came into operation on 1 September 2010. The 2010 Regulation introduced some changes to the model by-laws but those changes do not have retrospective effect.
5. The by-laws that apply to your strata scheme are set out on the Certificate of Title to the Common Property for your Strata Plan. You can access that Certificate of Title on the Land and Property Management Authority website: http://www.lands.nsw.gov.au.