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It’s a terrible spot you find yourself in. I don’t know if your granny flat is part of a strata scheme (I suspect not, based on what you describe) or just part of a suburban back-yard.
If it’s part of a strata scheme, then the owner can seek redress from the OC, as the walls/roof etc, are common property and should never have been allowed to sink into such a state of disrepair that the building ends up being condemned. The owner would be entitled to compensation from the OC in that case, so you may be able to strike a deal with the owner in terms of rent reduction for the time remaining, but that’s about as far as it will go.
If, however, it’s a granny flat in the owner’s backyard, there is much less you can do. If you stop paying rent, then you will lose your bond. If you are renting through an agent, they may also place you on a tenant black-list which will make it difficult to find new accommodation.
If you are renting privately, there is less chance of being black-listed, but it is still a big gamble. The best thing I would do is to try and strike a deal with the owners directly (don’t go through their solicitor) to get your bond refunded early and/or a rent reduction.
Fair Trading have given you advice that is probably close to the mark: you have entered into a contract with the owner and received what was promised in that contract, nothing in any rental agreement I’m aware of says that the building must be up to council code or that the tenant is compensated if a demolition order is placed on a property.
The only disclosure requirements I’m aware of are that the building must be habitable, not subject to flooding/bushfire within the last 5 years, not the scene of a violent crime, doesn’t pose a known safety risk or that the land contains easements/right of ways.
I hope that you get a good outcome, but I suspect that the best option under the circumstances is that your bond is returned in full.
It is a requirement to have working fire alarms, and they are common property.
If the alarms that the OC are installed are defective, then they need to be replaced at the OC’s expense, and pretty quickly as neither an owner, nor the OC should have to foot the false alarm call outs (which I believe are about $200-400). It’s a waste of money and fire department resource, and if there were a real fire, you don’t want to be known as the building that cries wolf.
You have some options as I see it.
* Raise the matter with the EC via your strata manager. It needs to be given urgent attention.
* It may be that the alarm system is covered by warranty. Most should have at least 2+ years. In that case, get the EC to seek repairs under warranty.
* Get the matter added to an AGM. Especially if not covered by warranty, it will need to be replaced (which will require capital works approval)
If that doesn’t work then I would launch action through fair trading to have the OC cover/reimburse owners the cost of the call outs. Once that precedent is set and is costing the building money, you will see that the EC will make sure the defective system is repaired/replaced
I agree with your stance on this.
However, there are some practical hurdles to overcome:
I’ll assume you just have the standard by-laws, so firstly I would suggest notifying the owners that there has been illegal work carried out to their lot, which is in breach of by-laws. I would recommend that the OC advises the owner that it will get three quotes and carry out the work itself and pass those costs back to the owner.
A balcony is common property and is usually given as exclusive use to the lot owner. As it is common property it is covered by OC insurance requirements, meaning that the OC is responsible for its upkeep, and the OC would be responsible if someone fell off the balcony.
However, all you need to prove is that OC didn’t remove the railing itself, nor did the OC grant permission to the previous lot owner to remove the railing.
Obviously the first step is to discuss the options with the owner, instruct your strata agent to follow your directions and then take it from there. It could end up in mediation/CTTT, so you need to understand from the outset how far you are willing to pursue the matter.
Good luck
Hi SmileyHouse
I’m not sure who you would make a civil claim against: the fact that you knew of your special levy and were able to tell your tenant 2 months out meant that the EC/OC did in fact inform you. Also, as an owner, you and the other owners had to vote to approve a special levy for the remediation works in the first place, so everyone who attended the AGM/EGM or read the minutes knew that this was coming.
While your EC could have sent the letter earlier than 1 week prior to the commencement of work, at least they have notified everyone in the building (bear in mind at a minimum they are only required to notify those on the strata roll – ie, you the owner).
If the tenant chose to move out citing potential inconvenience due to the planned commpon property renovations, then I’m sorry to say, but that’s just how it is. As a landlord (I am also one myself) you take a certain risk with any letting. Just as you have the right to end a tenancy, so do they.
It’s a very steep levy and I feel for you, but you haven’t said that the common property work will actually make your lot uninhabitable. I can only assume that the work – while major based on your cost alone – will not render your lot uninhabitable during the renovations. So I don’t think you have any basis for a claim.
Lastly the renovations to common property are to everyone’s benefit in the long term. If you sue your OC for loss of rent, the money that the OC has to find to fight the claim (and/or simply pay up) has to come from somewhere, so any civil action you launch will likely result in increased levies for everyone.
@ccbaxter said:
If anyone’s interested I was told today by a lawyer (not an expert ‘strata lawyer’) that I could perhaps mount a civil case using as a basis the NSW Workcover rules about work place bullying. That is to say, the owner is on the Executive Committee and the EC (or the OC) and maybe the Strata Manager maybe vulnerable. To be continued.I will go out on a limb here and say that the assumption is tenuous at best.
Even if you could draw a clear line between your bully and her position on the EC as either a worker or a PCBU under the WHS laws, you would need to determine, and hence define, that the OC itself is ‘work’ or an ’employer’ because the ultimate WHS liability rests with an organisation. This idea of a ‘workplace’ is central to the WHS act and bullying. An OC defines (primarily) a collective where people live. And, even if yours is a mixed use scheme: your interface with the OC is always around a question of where you live, and not where you work.
As for drawing your strata agent into all of this from the point of view of liability, again, you would need to determine (after having defined your OC as a workplace rather than a place where people live) that your strata agent was not in fact employed by the OC to carry out only the administrative functions, but rather implicitly or explicitly led the EC/OC to condone the bullying.
This of course won’t fly as the OC is the higher authority in this entire argument and WHS responsibility rests with them, so in effect, you will end up suing yourself and your neighbours and your increased levies will cover the cost of this action.
Lastly, the WHS act specifically excludes strata schemes from PCBU definitions, unless the scheme employs one or more people directly such as a concierge or caretaker. Even then, the PCBU extends only to workers themselves and the person employing them: so the caretaker could lodge a bullying claim against you and the OC, but you could not lodge a bullying claim against the caretaker or anyone else on the OC.
The term bullying is an over-used one: you are experiencing a neighbourly dispute – two people living in close quarters who simply don’t get along. Such disputes are just as common in free standing houses as they are in a strata scheme, so the avenues of redress are identical. Go get a restraining order, pursue civil action against her, call the police if she breaks the law and so on, but it is your responsibility and not the responsibility of your strata scheme or your strata agent to ensure that everyone co-exists happily.
Hi Wade
The only real mention of methods of payment regarding rent is that there must be at least one method available that does not incur a third party fee.
You may find that your agent charges fees for other methods (thereby making direct debit the most attractive option), but they can’t force you to use it. If however, they have no other method available, then you should contact the department of fair trading to report the matter.
Hi Adeze
There are appropriate and nationally legislated steps that need to be taken by all parties during a debt recovery processes.
From what you have described, no parties (including yourself) appear to have taken these steps.
Irrespective of the provisions of S.80, there are over-arching principles of debt recovery which seem to have been reaffirmed in that case law example you provided.
In addition to engaging a lawyer, I would strongly suggest you approach a consumer advocacy group that specialises in dealing with individuals in debt; if for no other reason than to document and assist with the process of attempting to negotiate payment terms and the like with the strata agent. From what I have read, that seems to be a crucial piece that is missing in this saga.
Hi Charlie
While I don’t think it’s illegal, it may or may not be the best scenario. Whether that is the case depends on how your scheme runs (and has up to now run). With 16 lots, and 6 on the EC, it’s fairly small so everyone may well know each other.
In the strict sense, the Act states that EC agenda & meeting times must be displayed on the noticeboard in advance. Also, it states that owners may attend an EC meeting; it goes on to say that owners may not address the EC meeting unless invited to do so. It does not say anything about owners voting at an EC meeting: that is reserved for an AGM or EGM.
Following that logic, you would need to put the EC motion to the AGM, but it would likely need a by law that would consider what constitutes quorum, veto rights, proxies etc in a scenario where anyone who shows up can have a voice.
That could be tricky, but on the flip side, most of us would crave a unit complex where the owners and the EC are engaged, friendly and prepared to ‘muck in’ with the goings-on. If you take the option to run the EC meetings strictly to the rules, you may create suspicion amongst the owners who no longer have a voice on issues that affect them. Perhaps a compromise would be to get the agenda to the owners earlier and then ask the owners to submit their thoughts prior to the meeting – they can still attend of course – this would then let the EC decide on balance of votes to expedite the process.
In relation to personal legal liability, that would be difficult to make stick. The databases used by emergency services are more than just the white pages and a Gregory’s street directory. Unless your complex is very new, and or very remote, I would bet that the emergency services would find you.
It still doesn’t excuse the fact that the EC are not pulling their weight in leaving the common property in disrepair.
A first initial and surname is hardly considered anonymous. However, if you believe that there should be more, then read the minutes of your AGM: their details are listed there for all to see. If not, then request the information from your SM. Then, go speak to the EC member directly with the intent to gain and give an understanding, not exact a victory.
If the EC member is not on site, then attend the next EC meeting (note: you may not be able to speak during the meeting, but there’s always before and after).You may have to take measures to prove that the plants aren’t an OHS issue in order to get them back, but the exercise may be conciliatory in a broader sense between yourself and the EC and this will probably help you out more in the long run by letting you fly under the radar rather than raising the ire and hence attracting the attention of the EC.
Hi
Actually, while I agree with you (and would say yes to each of the points); according to the world of strata the following applies:
1) Is the OC responsible for the cost of engineer reports and the work needed to fix the problem?
Yes
2) Is the OC responsible for the cost of fixing the inside of the bedroom from the water damage?
No – strictly speaking the skirting boards and the carpet should be covered by the owners own insurance policy; the cost of opening the owners’ insurance claim should at the very least be borne by the OC. However, for me, if the OC is opening a claim to fix damaged property (ie the floorboards and or waterproofing membrane/drainage to the flower beds) then I think the OC insurance should just cover the lot.
3) Is the EC required to deal with this issue immediately?
Yes – and while six weeks is a long time for your friend, it isn’t negligent on the EC part given that water penetration is never usually a straightforward issue, and that the cause is now known. They should of course now set about fixing it ASAP. Also, depending on how the EC structure themselves and the total likely cost to repair, it should be authorised either at the EC meeting or by majority via email: if the costs exceed the spending powers of that particular EC, then an EGM might need to be called…but this is usually unlikely.
Actually, it’s the most common scenario, and it often depends on the size of the block as to how strictly its enforced.
While in this case, it’s just a reset button that needs pressing, it pays to remember that your EC are volunteers and are people just like you.
Now I’ll play devil’s advocate here: if you didn’t know it was just a reset button that needed pressing in the motor room, why should the EC?
Continuing with that hyperbole, why would an on-site EC member be skilled across plumbing, electrical, telecommunications, television reception, gas fitting, hot water service/boiler making, garage door/elevator motor repair, proxy cards and locksmithing, and any of the other myriad of things that need repairs and servicing?
They are not (it’s not possible – and furthermore, they wouldn’t be licensed) which is why this stuff is out-sourced. When something is out-sourced, you need to pay for it; in strata these fees are shared, and there is almost nothing you can do about that.
My suggestion for this problem of after hours service/repairs is to ensure that the website/phone number of the strata manager is prominently listed on your noticeboard.
Ultimately, the EC are members of the OC. You are also a member of the OC: making a telephone call to an afterhours service is something that anyone on the OC can do.
Hi Martin
The start to getting a definitive answer will lie within your strata plans and any subsequent bylaws that have been passed. You will need to check these as to what compromises your lot boundaries
If you have only the model bylaws (ie default) then two scenarios are likely:
1) Your courtyard is common property but is for your exclusive use, in which case the tree and its maintenance is the OC responsibility, or;
2) Your courtyard is on your title. This will mean everything up to a certain height above the ground and a certain depth below the ground is your responsibility. Typically this is 3m above ground and (up to) 1m below ground: although the below ground part varies widely. The above/below ground heights will also be stated on the strata plan.
If there have been any subsequent bylaws passed, then of course the above advice doesn’t count.
Now, if those trees are entirely yours (unlikely), then you may need to look at getting a home and contents insurance similar to a free-standing house to protect you in the event that they toppled and destroyed structures or caused injury/death.
If it is a hybrid model (ie you have the first 3m), then you may want to ensure that the OC has insurance and get confirmation of tree maintenance responsibilities for the crown of the tree (which will be common property) as well as confirmation of your responsibilities in terms of allowing access as well as looking after the roots of the tree and the bottom 3m of the tree. If that doesn’t suit, then you may want to go to a strata lawyer, get a draft bylaw written that hands full responsibility of the tree to the OC (or to yourself whichever you prefer) and propose it be voted on at the next AGM
Hello wingattack.
As Jimmy said, the process will almost always have its share of attractors and detractors in equal measure.
I’ll add that the OC (of which the EC is the representative) has an absolute duty to maintain common property. Painting (or repainting) a harborside block that is subject the issues of salt water and the elements actually seems perfectly reasonable and will ensure that the block in question maintains its prestige.
The colour is actually a moot point in this process as the OC may have been required to repaint the building to protect the concrete/brickwork/woodwork etc. Even if the building had previously been unpainted, in order to protect it from the elements, a paint job is sometimes the cheapest and most effective way to prolong the lifespan of certain materials.
To your point about the EC simply add a motion at next years AGM to increase the numbers on the EC. 7 people on the EC sounds like a good number. If, the owners are as engaged in the process as you say, then you’ll have no issue in getting other owners to volunteer, and the additional 4 people on the EC will avoid theses sorts of ‘white-washes’ from occurring again.But ultimately a tin of salmon coloured paint costs the same as white: so, if the owners really object to the colour then they can add a motion to the AGM in 5 years’ time to paint it white….
Oh, and edit….by quorate ( I know that strictly speaking 3 out 5 members is quorate) I mean to say is the action legitimate when all 5 of the EC want to attend the meeting (it’s just that the date selected by the SM doesn’t suit the chair and treasurer)