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@gtyk said:
They said they would send breach notices to the tenant, owner and agent. Ash keeps happening. They tell me they can’t fine the tenant. I asked them to start a tribunal action against the tenant. The strata people tell me this needs to be voted on by the owners committee, and given the cost of initiating an action, and likelihood of failure, they will likely not vote for it to go ahead.In ACT legislation, if you can request that a breach notice be sent to another resident. If a notice is sent they have to tell you that it has been done within 14 days.
Most OCs will have a general rule to cover nuisance. IE that you can’t do something in one unit that causes a substantial annoyance or nuisance to someone in another unit. Depending on the wording it probably has a qualifier to say that it has to be ‘substantial’. IE no proliferation of breach notices over very minor things. The trick is convincing people that the ash amounts to a substantial nuisance. Time would be part of that. Something you would tolerate for a short time becomes substantial if it continues for a long time.
I expect the advice is correct that it takes a resolution of the EC to take a dispute to the tribunal. That is what we have in the ACT.
Causing nuisance would be breach of the tenant’s tenancy agreement so a breach notice could be sent simultaneously to the owner and the tenant and they can be held jointly responsible. Perhaps the EC would agree to write to both, even indicating that the matter could be taken to the tribunal, even if they privately think they are unlikely to take it that far. That might get some action nonetheless.
My expectations are based on the ACT legislation and the ACT tribunal, but perhaps you can check or others can advise if you would have equivalent things:
The ACT Unit Titles (Management) Act has a section on dispute resolution and it includes sections on who can take what other parties to the tribunal for an order over what sorts of matters.
Even if the OC has not done anything unreasonable to date, if a defect in the common property appears, and it is too late to get the original builder to fix it, then the OC is lumped with making the repair.
Following is a quote from a Teys Lawyers fact sheet from a few years ago:
“The strata owners have a strict liability to repair and maintain common property. Problems emerge with one aspect of the common property, for example, rusting balustrades on a balcony and water penetration into the living area of a unit as a result of a defect in a waterproof membrane. The owner of the unit alleges both problems are for the strata scheme as a whole because the water membrane is common property. Years pass whilst the parties dispute responsibility. The unit owner moves out and sues the strata scheme for loss of rent and the loss in value of the unit because of the failure to repair and maintain common property.
These are the facts of Seiwa Proprietary Limited v The Owners Strata Plan 35042 (2006) NSWSC 1157. The New South Wales court of appeal found in favour of Seiwa, upholding a strict duty on the strata scheme in question to maintain and keep the common property in good repair. A breech of this statutory duty gave rise to a private right for the unit owner to be awarded damages of $150,000 for the loss of use of the unit. Further damages of up to $250,000 would follow in the court’s opinion if repairs were not done within three months. The strata scheme also had to pay the unit owner’s legal costs.”Quoting that might focus the minds of the EC. I wonder whether some imaginative solution is possible? Perhaps there is someone single in the building with a large unit who would be happy to have a tenant for a while at a low cost to the OC?
I am not in NSW but it surprises me that the NCAT can’t rule on this.
Perhaps armed with some advice from this forum on the specifics of NSW legislation you could go to the tribunal unrepresented.
I would expect all you have mentioned is an OC expense. If their insurance doesn’t cover it then they would have to have a special levy or borrow to cover it.
Just a couple of comments.
There is an Australian Standard on parking. It goes into a great deal of detail about size and shape and turning space and so on. One of the consistent principles is that the width of space that complies with the standard depends on whether there are adjacent spaces or obstructions. So, a narrow space might comply with the standard if there are adjacent spaces: It is explicitly assumed that one can ‘borrow’ some of the adjacent space for door opening. If there is a wall adjacent the space has to be wider to meet the standard.
A parking space may or may not be just for parking. At our OC we have parking spaces on common property that units owners have a ‘special privilege’ to use. The grant of that special privilege included conditions. Owners are granted the right to use the space for parking vehicles and also allowed a limited amount of storage within limits (not ‘excessive’ or ‘unsightly’ or dangerous). The OC reserves the right to use the space for other purposes if it would not interfere with the unit owner’s use of the space for parking, eg. putting solar panel on the roof over the space.
Others at our OC have carports attached to their units. Those are used by the unit owner however they like. The only limits there are is a rule (by law) that applies to all aspects of a unit and requires a unit owner to maintain their unit is good condition and not to maintain anything within the unit that is visible from the common property and detracts seriously from the appearance of the property (or words to that effect).
In ACT-speak, you would be looking for a ‘special privilege’ for exclusive use of an area of common property. Money might change hands but you would not be ‘purchasing’ common property. It would remain common property.
Again in ACT-speak, you would have to be careful that the special privilege is granted to the ‘owner of the lot for the time being’, IE, whoever is the owner at any time. Otherwise the grant could be to you only and not someone you sell the unit to in the future.
Does your executive committee have a treasurer or is all delegated to the strata manager? In any case, a question you could put to the EC is “What do the OC records show of my arrears?”
As treasurer of our OC, if an owner asked me about his or her arrears, I would be able to quickly give an answer of what the managing agent’s records show – I can access the unit balance list electronically. If the amount was not what you thought, then I would strongly recommend taking that specific point up with the managing agent. They should be able to reconcile their records with your receipts.
PS. If your financial situation is not too dire, could you get a loan to pay off the levy arrears? The interest on that loan would be less than you have to pay to the OC.
More generally, I think there are services that will assist to consolidate debts into a single loan with lower interest than you would pay for OC arrears, credit cards and so on. I don’t know more than that so can’t advise further, but I am pretty sure such things exist.
Just an idea:
Perhaps a very short letter to each owner, on paper, not email, along the following lines:
Dear Neighbour,
I expect you are aware that I am in arrears with my owners corporation levies. However, I am concerned that some of you might not have been informed that I have been making regular repayments to reduce this debt from a high of about $12,000 XXX months ago and now my debt is reduced to $XXX.
I am conscious that the owners corporation needs to have levies paid to meet its various expenses and I am keen to eliminate my debt as quickly as I can manage. Owners might also not be aware that under strata legislation, arrears attract interest that is rather higher than the OC could receive from any bank deposit. Consequently, although the present situation is not ideal and I am working to remedy that, the OC will come out ahead in the end.
Regards,
I doubt that a paper letter will go unread if you keep it brief and only make these few factual points. If need be it could be followed up later with more detail or discussion about the managing agent, but for now, I suggest the short letter might cut through any disinformation or lack of information. If anyone demands proof of payments etc. then that is good because they have started talking again and you can send them a photocopy of your receipts.
Good Luck.
@JimmyT said:
…A couple of years ago our committee voted against installing solar panels on our massive flat roof because it would “cost more to pump the water on to the roof than would be saved in energy”. In other words, they couldn’t tell the difference between a domestic hot water system and electricity generating photo-voltaic cells that could have run all our internal lighting and then enough power to sell to the grid. Worst of all, they wouldn’t listen to anyone who tried to explain…
I hear your pain. We did get our PV system but only after the third try. In our case the EC was for it, and I was part of that EC, but we had a massive campaign of disinformation from some other owners. Now as treasurer, I take some delight in drawing attention to various aspects of the proposed budget for each year, especially that we are budgeting zero dollars for electricity. I was very pleased recently to hear a neighbour who honestly admitted to having been sceptical at the time now proudly explaining to visitors how well it works.
Perhaps time to have another go at doing solar, particularly if you can have net metering and self-consume for lighting that runs all day? If it is ‘battery-ready’, it can be oversized enough to run the lights at night in due course. If a non-EC group gets a well-developed proposal together it would have to go on the agenda and the incumbant EC might look silly if they still oppose.
Perhaps there is something odd about fire regulations that say the door can only be used in an emergency, but I can’t think why that would be. Assuming the door can be used:
I would argue that allowing the use of the door for egress would be a good policy to ensure it stays unobstructed. The OC’s risk of being found liable would be reduced as it is less likely to become obstructed with nobody noticing till too late. Argue that it would be a good safety measure to reverse to edict to not use the door. Talk to your neighbours who use the door and convince them of the good sense of this proposal. If you get nowhere with the managing agent, put the safety argument to the EC, who can direct the managing agent. If you get nowhere with them, just keep going out the door and moving obstructions out of the way. Photograph the obstructions you moved out of the way in order to ensure the OC remained compliant with fire regulations. IE have the proof that you occupy the high moral ground!
I presume you use that exit because it is more convenient. All residents have a right to reasonable use and enjoyment of the common property.
Assuming the OC’s only foreseeable use of electricity is for this one common property light, could it be a solar light of some sort? One modest solar panel and some cabling to link to a battery would be ample to run one good LED globe. This ‘off-grid’ arrangement would be purchased by the OC and and it would remain an OC responsibility to maintain, avoiding the need for messy arrangements with one unit owner. Sealed batteries these days require little maintenance and last for ages, especially running just one light. The key thing is that the light is presumably needed for safety and the OC cannot pass that responsibility to one unit owner. Later owners of the unit might not accept it anyway. The savings from the electricity ‘service fee’/connection cost should repay the cost of the solar installation in due course.
This reminds me of a current matter in our OC. Back in the 1990s a unit owner moved into a unit (townhouses) and was not at all keen to inherit the arrangement that they would leave an outside light on to illuminate a very dark area of path. That path led to several other units. The previous owner had been given a small compensation for the cost but the new owner was not keen and the whole arrangement eventually was forgotten. The treasurer back in the 1990s resisted extending the common property lighting and installing another light. She asserted that it would be very expensive. Decades later, the unit’s outside light was not always left on, that patch of path has remained very dark and narrow for the last two decades, an OC liability that waiting to happen, especially with several elderly people living down that path.
Now I am treasurer and I find the cost to extend the lighting circuit and add the light is trivial in the scheme of things and there was no resistance to doing it when I proposed that our updated sinking fund plan include adding a few lights for several such dark patches on paths. It seems to me that the earlier treasurer had regarded it as a virtue to avoid any spending. Now we have an electrician installing the lights and people wonder why it had not happened years ago.
Hmmm. You could propose a motion for the next AGM that the EC size be some larger number, say 5 or 7 (In the ACT a special resolution is required to decide to make the EC >7, not sure about elsewhere). You could enlist a few of your resident neighbours to be ready to nominate each other. The managing agent could not reasonably refuse such a motion or to mail out to all owners your statement in support of the motion. If the motion passes and you then have a majority on the EC, they can firmly direct the managing agent in the interests of the OC. The manager acts for the OC as directed by the EC.
I don’t see why the managing agent or the OC would be pursuing this overzealously. In the longer term, it is not in anyone’s interests to have levies unpaid and for debts to grow. However, on the face of it, jpsblue75 is making progress paying off the debt and in the meantime the OC is benefitting from better interest on the arrears than they could get if the levies had been paid on time and were sitting in the OC’s bank account.
Since it seems to be a small OC, I suggest the best course of action is to speak directly to as many as possible of the other 5 owners, or write them a letter. I would explain to them that you are catching up your levies with the payments you can manage on a regular schedule and the OC as a whole is benefitting to some extend from interest in the meantime. Given that good behaviour on your part, I doubt any legal action would succeed. As an owner you should be able to see what costs are involved in taking that legal action and you might be able to persuade your neighbours that they are better off if you are left to continue working off the debt.
That said, there is a statutory debt to the OC they they could enforce with a debt collector if you did not stick to a reasonable repayment schedule.
I don’t know what is deductible against income earned from a property rented out.
Why would you suppose that any of those would be tax-deductible for premises you live in?
The only circumstance I can think of would be if you let out part of your unit to a boarder, you declared the income from the boarder and claimed an appropriate fraction of costs of the property against that income, perhaps a third if the boarder shared the living space and had one of three bedrooms.
It sounds like the property could do with some dedicated bike storage as a community facility available for use by any resident. How about working out where that might be installed without obstructing other uses of common property?