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@Whale said:
OK, so one sensible suggestion would be to enforce the standard By-Law that applies to all (NSW) Strata Plans depending upon their date of Registration, where the one for Plans Registered in 1996 states:Garbage disposal
An owner or occupier of a lot:
(a) must maintain within the lot, or on such part of the common property as may be authorised by the owners corporation, in clean and dry condition and adequately covered a receptacle for garbage, and
(b) must ensure that before refuse is placed in the receptacle it is securely wrapped or, in the case of tins or other containers, completely drained, and
(c) for the purpose of having the garbage collected, must place the receptacle within an area designated for that purpose by the owners corporation and at a time not more than 12 hours before the time at which garbage is normally collected, and
(d) when the garbage has been collected, must promptly return the receptacle to the lot or other area referred to in paragraph (a),
(e) must not place any thing in the receptacle of the owner or occupier of any other lot except with the permission of that owner or occupier, and
(f) must promptly remove any thing which the owner, occupier or garbage collector may have spilled from the receptacle and must take such action as may be necessary to clean the area within which that thing was spilled.
This By-Law requires residents to each “work” for their own benefit, and if they don’t comply, then the Executive Committee (E/C) could meet and determine to issue offenders with Notice to Comply with a By-Law, and whilst that could lead to Mediation that might just result in the polite and sensible solutions that you seek.
You could additionally talk to your Council’s Health Department about your issues, including about one bin/lot as the By-Law implies, and they could lean on the E/C, but be careful with this as the By-Law also places some obligations on the Owners Corporation and it would need to ensure that those were in place and fully compliant.
I hate to be devil’s adovcate, but such a by-law is probably valid.
Note that model by-law 11 (found in schedule 1 of the Strata Schemes Management Act 1996) is in the following terms:
“11 Cleaning windows and doors
An owner or occupier of a lot must keep clean all glass in windows and all doors on the boundary of the lot, including so much as is common property.”
As has been confirmed by a Court of Appeal decision, a model by-law cannot be held to be invalid.
It seems to me that the by-law quoted above is not dissimilar to this model by-law, and hence, it is unlikely to be invalid.
@ericbosloor said:
I think it is just fair.Unfortunately the law is not always “fair”. See, for example, Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305.
I don’t mean any disrespect to those in this thread in saying this, but it is kind of surprising that everyone in this thread disagrees with my view, yet they cannot cite a single case to prove their assertions correct …
I’m not saying my views are necessarily correct, but at least I have provided cases and detailed explanations of those cases to substaniate my views. Others, on the other hand, are just claiming that I am simply wrong …
Looks like the original post has been deleted, but I’ll still try and help …
@Whale said:
It’s a bit of a stretch, but in my opinion an argument could be mounted that the UOE originally allocated to the penthouse Lot became unreasonable when that part of the parcel that comprises the roof area (common property) was effectively made part of that Lot by virtue of an exclusive use by-law, with no adjustment then being made to that Lot’s UOE to reflect the consequent increase in “value”.With respect, I do not agree that an exclusive use by-law adding value to a lot would give rise for grounds to a section 183 application. I do not think your interpretation of section 183(2)(b) is correct. I think the key words in that subsection are “change in the permitted land use”. I do not think an exclusive use by-law can make such a change.
There is at least one Tribunal decision that is in comformity with my view (Owners Corporation SP 56928 v The Secretary Owners Corporation SP 56928 [2010] NSWCTTT 232).
However, not all is lost for the op. Had he not deleted his post, I could probably help a bit more, but nevertheless, it seems the op could apply for adjudicator’s orders under section 158(1)(c) on the basis that the maintenance conditions of the by-law are unjust. There are a line of decisions of the Tribunal and/or adjudicators which give a pretty good picture of when orders under that section will be made.
Your O/C’s Application for Orders should be on THIS form, and if that is granted, then THIS form needs to be submitted to NSW Land & Property Information.
That application form is not the one for section 183 applications. It should be the application form for Tribunal orders (not Adjudicator’s orders) which should be used for a section 183 application.
@Austman said:
But s.49 doesn’t need any notice. That’s recovering the costs that the OC spent. The owner might still need to be given notice make their own repairs at thier cost, which seems the case here. S.49 states that the OC can recover the costs for repairs, maintenance or other works that it undertook for the benefit of lot owners.Yes, but seems equally arguable in this case that the owner who benefitted from the alleged repair was the other lot owner who complained that water was penetrating into his/her lot.
I know the above is Victorian OC law but in general, if someone damages your property, do you need their permission before you arrange to repair it? You might not even know who damaged it until aftef calling in the repair man.
Generally yes. It is preferable that the owner of the property arranges repairs to their own property on terms suitable to themselves. See Swan’s case that I cited before.
@scotlandx said:
mini – the High Court case you cite is a contract case which considers the principle of quantum meruit.Yes it is. It is also a case about restitution. Indeed, the headnote reads:
“Restitution – Unjust enrichment – Appellants accepted benefit of construction work performed by and at the expense of respondent – Claim that it would be unconscionable for appellants to retain benefit – Appellants made no direct request of respondent – Whether restitutionary claim available.”
Quantum meruit and restitution are similar, however, they are not the same. Indeed, you are quite correct that quantum meruit is applicable to contract law. Sometimes it is considered as the damages arising from an “implied contract”.
With restitution, on the other hand, there is no contract (I believe it is often considered that there is a “quasi contract”, but that isn’t an actual contract). It is an equity and/or common law principle that allows justice to be done where was no clear promise ever made (or ever intended). Thus, it appears that the law of restitution is most applicable to the op’s case, those legal principles having been considered by the High Court in the case I cited.
The Swan case dealt with an owner making unauthorised repairs to the common property, where it was held that the expenses were not recoverable as a loss attributable to a breach of duty, i.e. the OC did not breach its duty, and it is up to the OC to determine how the common property is to be repaired. The reverse does not apply – the OC is not telling the owner how to repair his property, they were simply investigating the source of a leak.
With respect, I wouldn’t see why the reverse wouldn’t apply. It is up to the owner of the property (which, in the case of common property, is the owners corporation) to decide how the property is to be repaired. In the case of a lot, it is up to the lot owner to decide how their property should be repaired.
If the owners corporation went ahead and repaired (or made investigations to repair) lot property, for alleged breach of statutory duty, without authorisation from the lot owner then the owners corporation cannot claim, as damages, from the lot owner the costs of the repair.
Neither of those cases is relevant to this issue. It is very dangerous to take parts of decisions from different fact scenarios considering different legal principles, and applying them to something like this.
The issue here is quite simple – if you have something in your lot that is faulty that affects the common property, are you liable for the expenses in both investigating and repairing the fault? I would say yes – if you are liable for the repair, you are liable for investigating the source of the fault.
Yes, usually the owner of a property is responsible for repairing their property. However, that doesn’t give another party the right to go ahead, without the owner’s consent, and spend money to repair that owner’s property and then seek reimbursement (or sue for damages) of the cost of the repairs. Swan’s case was saying that the law doesn’t look favourably on such persons seeking reimbursement in such cases.
@Austman said:
Just to add, I found this on The Law Handbook Online.It relates to the situation in Victoria. It seems the OC can recover debts under s.49.
https://www.lawhandbook.org.au/handbook/ch10s05s05.php#Ch1302Se257876
Water leaks
Under section 16 of the Water Act 1989 (Vic), a lot owner is responsible for the repair and maintenance of their unit to prevent any escape of water from the unit into any other unit within the plan of subdivision.
Although the owners corporation is not a liable party and need not pursue a response, it must do everything in its power to fulfil its obligations responsibly to ensure that it cannot be implicated in the cause of the leak. This may involve undertaking investigations, repairs and maintenance including new guttering, flashings and sealants and the clearance of storm water drains.
In addition, under section 48 of the OC Act, an owners corporation may choose to be involved and may serve notice on the lot owner requiring the lot owner to carry out the necessary repairs, maintenance or other works and may recover as a debt from the lot owner any costs expended by the owners corporation for the rectification (s 49).
With respect to s 16 of the Water Act 1989 (Vic), subsection 1(b) provides that one is only liable for damages if the “flow is not reasonable”. Thus, a lot owner does not seem to have an absolute duty under that section.
Secondly, in the event that the op was to be liable under that section, it is not clear whether that would extend to the call out fee incurred by the owners corporation, given that the op did not give permission to the owners corporation’s contractor to perform the work. My views are based on what was said in The Owners – Strata Plan 32735 v Heather Lesley-SWAN [2012] NSWSC 383 at [197]. That case was in the context of a lot owner performing repairs to the common property (which the owners corporation is owner of) and then seeking to sue the owners corporation for statutory damages for the cost of the repairs. The court held at that paragraph:
“The basis for the principle against recovery in the latter situation is clear. The relevant case law authorities establish that the law does not look with favour upon an owner of one property of performing work on his neighbours property, it being recognised that such conduct carries with it the propensity for disputation, “turmoil” or “disorder”. The statutory provisions that establish a strata scheme, in my opinion, are directed towards maintaining an order amongst strata lot owners and with the owners corporation. They neither authorise nor permit a lot owner to determine the nature and extent of construction to be undertaken on common property. Nor do they permit an individual owner to engage a contractor to perform work on common property without the consent or approval of the owners corporation. Accordingly, the expenditure incurred by the respondent cannot be considered as “damage” inflicted upon or occasioned to the respondent. Nor did the evidence before the Local Court establish a causal nexus between the breach under s 62 of the Act and the expenditure claimed by the respondent.”
It seems to me that there is no reason why the same could not apply to the op’s case, of course with the roles as lot owner and owners corporation reversed.
With respect s 48 of the Owners Corporation Act 2006 (Vic), subsection 2 requires that the lot owner be served with a notice. A lot owner is only liable for damages under that section if the notice is not complied with in 28 days. That does not appear to be for the op’s case.
In any case, the above is only true is the op is in Victoria since the legislation you have quoted is Victorian legislation. It may be that he is in another state.
@Austman said:
I can’t see this matter has anything to do with contract law.Damage was being caused to private and/or common property by water. The owner of the private property or the Owners Corporation took steps to investigate the cause of the damage. It turned out that the damage was being caused by an other owner’s private property.
Common Law would suggest that those that suffered the damage have a right to claim costs against those that caused the damage?
I am not suggesting this has anything to do with contract law. I make that clear in my concluding paragraph in my post. I said to the op: “But it doesn’t seem you have to worry about that.”
The High Court case I referred to in my post considers legal principles applicable to the law of restitution. In absence of any legally binding contract referred to in my post (which appears to be the case for the op), then one would generally only be able to recover money spent on the said repairs under the law of restitution. However, as the High Court made clear in that case, a person who spends money carrying out work to someone else’s property cannot be reimbursed for the expenditure they incurred carrying out that work by the owner of that property, unless, at the bare minimum, the person from whom the reimbursement is sought made a request that work to be carried out. It seems that, in the op’s case, he/she did not make any such request, and hence, is not liable to reimburse the owners corporation of the expenditure it incurred for repairing the op’s lot property.
Have a read of the case.
@nathanthiessen said:
Almost two weeks later, we have received the invoice from the strata for this call out. My question is, are we responsible for this invoice? We did not call the plumber and no repairs were carried out. We only provided assistance by allowing access to our unit at 11pm. Your help in this matter would be greatly appreciated.Most likely not. See Lumbers v W Cook Builders Pty Ltd (In Liq) [2008] HCA 27 at [80] where the majority of the High Court in that case quoted the following passage from an English case:
“The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will.”
The story, however, is different if the owners corporation can establish that there was a legally binding contract between you and the owners corporation that required you to reimburse the owners corporation’s expenditure for the said call out. But it doesn’t seem you have to worry about that.
@Stivcro said:
Sounds like you need a new Strata Manager, from what you described, yes it falls under s65A which may require a special resolution.Not necessarily…
See, for instance, Collins v OC SP 18027 [2013] NSWCTTT 273 at [13]-[17]:
“13 The nub of the problem concerning the replacement of the carpet is whether that action falls under section 62 or 65A of the Act. The parties were informed this would mean that the hearing was one focussed only on statutory interpretation, and no other issues. Both parties agreed that they had filed and served all documents on which they relied, neither wished to adjourn either proceedings and that they were ready for a hearing there and then.
14 Mr Robinson took the Tribunal through the extensive history of the matter. It became apparent that there may be some lot owners who were not fully apprised with all facts of the replacement, including whether the current rose coloured carpet was still available, before a plebiscite was taken. The vote was close; however, the executive committee have continued to make arrangements to have the neutral coloured carpet laid in Grange House.
15 Mr Le Page grasped the nettle and took the Tribunal to a New South Wales Supreme Court decision which involved the replacement of a wooden floor, being common property, with a concrete slab. In Stolfa-v- Owners Strata Plan 4366 & ors [2009] NSWSC 589, Justice Brereton pointed out in paragraph 68 of his reasoning that even though the replacement of a wooden floor by a concrete slab may well have involved a superior construction, he was satisfied that insofar as the substitution of that concrete slab for timber flooring was concerned, it constituted the keeping of common property in good and serviceable repair. As such, this was done in accordance with section 62 of the Act and it did not require the authority of a special resolution under section 65A.
16 The Court of Appeal affirmed the primary judge’s findings, claiming that the judge was correct to reject the submission that the work fell under section 65A. The Court of Appeal then went further and declared, “The statute should not be construed so as to require the Owners Corporation to act, but then to place a voting barrier in its path in complying with the statute”.
17 The Tribunal is satisfied that the proposed replacement of the carpet falls squarely under the auspices of section 62. The Tribunal acknowledges that the executive committee, in an effort to placate alarm at the possibility that the replacement carpet might be of a colour which could disturb some of the lot owners, went to the trouble of calling meetings, displaying samples, and conducting a poll to ascertain, if possible, the will of the majority. It was under no legislative requirement to do so. The executive committee could have acted arbitrarily but should be congratulated for seeking to ascertain the wishes of the residents of The Grange.”
But I wouldn’t rely on this decision, as it is clearly not binding on other Tribunal determinations. Nevertheless, it is an interesting perspective.
@kiwipaul said:
Does this mean no more adjudications are going to be available online for NSW.It should be noted that decisions of adjudicators (as distinct to decisions of the Tribunal hearing an appeal from an adjudicator) are generally not published for some reason. There are a few exceptions though, the noteable one being the May case (a decision of G J Durie acting as adjudicator).
@JimmyT said:
I am reliably informed that strata managers frequently apply for an extension of their statutory appointment on the grounds that the problem that required their appointment hasn’t gone away nor has it substantially diminished (i.e. the same people who caused the problem are still there). This is usually allowed as a matter of course. There would be no harm in telling your strata manager that you would like them to do this.I wonder on which ground they do so. Because, section 162(7) sets out those who have standing to make an application under that section. The subsection does not specify that a strata managing agent has such standing.
I guess, then, an extension would be made on application under s 171. By ss (3): “any other person who is required by the original order to do or refrain from doing a specified act” can make an application under that section. I guess a currently appointed compulsory strata managing agent falls into the proposed class of persons under that subsection so as to enable it to make an application under that section.
In NSW this has already been the subject of authoritative consideration: see Ridis v Strata Plan 10308 [2005] NSWCA 246
Ridis was a case in which the front door of an apartment block comprised two doors, each containing a single pane of ordinary annealed (as distinct from safety) glass, which had been etched. The building was a security block requiring keyed entry or the use of an intercom. On the relevant day, Mr Ridis and his partner had left the building to farewell some friends who had been visiting. After doing so Mr Ridis’ partner, who had the key to the front door, opened it and proceeded into the entrance lobby. Mr Ridis was walking about two metres behind her when he saw the door closing very quickly. He instinctively extended his right arm towards the glass pane with fingers flexed in order to prevent the door from closing and locking. As his fingers came into contact with the closing door, it shattered, causing severe lacerations to his right forearm as it passed through the doorframe. Mr Ridis sued the owners corporation for damages, asserting that it had failed in its common law duty of care to him and in its statutory duties under s 62 of the Strata Schemes Management Act 1996 by failing to replace the existing glass with safety glass. Barrett JA, who together with McColl JA formed the majority in that case, held that the owners corporation had not breached its duty of care.
Further, the majority of the court in Ridis held that a breach in s 62 of the Strata Schemes Management Act 1996 does not sound in damages and therefore there is no private cause of action against the owners corporation in the event of such a breach.
So it seems, answering your question, if a personal injury occurred on the common property within a strata scheme, then the owners corporation probably wouldn’t be liable.
@MrPinkCarpet said:
Does anyone understand the rules about access to electrical rooms (where the meter and fuses are). And how do I get a key without starting World War 3If you are in NSW, then assuming that the said rooms are common property, then every lot owner (not necessarily an executive committee member) has an unfettered right of access to that room depending on the by-laws of the strata scheme. This is because the rights of common property are proprietary. That is, every owner, as tenants in common in shares equal to unit entitlement, own the common property.
The by-laws probably could control access to the common property (e.g. set out a procedure as to how one desiring to access the common property should take) but they cannot deny access to the common property unless the by-law is an “exclusive use” by-law (which has to satisfy a number of conditions).
In absence of by-laws controlling access to the electrical room then one could probably conclude that you are entitled to a key to the said room.
The other posters in this thread are correct regarding electrical room keys. If your building was built prior to 2011 or so then the electrical rooms are probably on NMB keys (which are the same profile/shape as most house keys). Otherwise they will be Abloy.
@Cappy said:
Our SM has advised that only 75% need to agree to a Special Resolution to sell common property.Your strata manager is correct.
@Cappy said:
No-one seems able to refer to any specific reference in the SMA to support either optionThat is because the Strata Schemes Management Act 1996, as the name suggests, primarily deals with the “management” of the common property.
Your answer lies in section 25 of the Strata Schemes (Freehold Development) Act 1973, the relevant portion of which states:
“(1) A body corporate may, pursuant to a special resolution, execute a transfer or lease of common property other than common property the subject of a lease accepted or acquired by the body corporate under section 19 (2).”
Hope this ends the little dilemma that you seem to be facing.
Cases like White v Betalli suggest that a by-law which gives exclusive use of lot property, in this case car spaces forming part of the lot, to other lot owners is valid.
However, such a by-law, notwithstanding that it is valid, is subject to being revoked by an adjudicator under section 157 of the Strata Schemes Management Act 1996 because it would, no doubt, impose a very severe restriction upon the use of those affected owners’ use of the respective portions of their lots (being carspaces).
@margaret hellings said:
HiI have a garage space in the under ground garage which is shared by five owners. These spaces are individually owned and form part of unit entitlement.
Some owners without garage entitlements are pressuring for stack parking to be installed in this garage to gain space for themselves.
I am I right in thinking that Stack parking will not be allowed under strata law as I own my garage space?
Interested to see your thoughts
Margaret