Forum Replies Created
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danih – The owner appears to have made several demands.
An OC is required to undertake repairs to the common property but they do not need to follow the dictates and/or demands of the owner.
An OC can arrange for an independent assessment of the need for repairs, and can arrange for a competent trades person to undertake the repairs.
If I was you I would have a competent builder look at the areas of concern rather than employing an engineer. Ask the builder whether he thinks that an engineer’s report is required.
The information that you have received is correct. However, the Strata Manager must disclose this commission or face a penalty. Transparency is the key.
From the CHU website: “Commission payments are made to cover all of the administrative time and advocacy strata managers spend quoting and transacting an insurance contract for a scheme.”
“the commission also covers time spent on claims as, if a separate claims handling fee is set, this can become quite costly if unexpected claims lead to a high number of hours being worked.”
Both an estimated commission must be disclosed (at the AGM prior to the commission being paid) and the actual commission paid must be disclosed (at the following AGM).
“Strata managing agents must report at each Annual General Meeting whether any commissions or training services have been provided to, or paid for, by the agent in the preceding 12 months, and provide the particulars of those commissions or training services.
“The agent also has to set out an estimate of any commissions they expect to receive in the following 12 months. If an agent doesn’t do this, they are subject to a penalty of up to $2,000, so it’s an offence for an agent not to make this disclosure.”
See this link (from the Strata Mangers’ perspective):
https://www.reinsw.com.au/Web/Posts/Latest_News/201709/Advice_on_strata_insurance_commissions.aspx
and this link (from the OCs’ perspective):
Peter and JT – After reading various Tribunal decisions on this issue I respectfully disagree with your assessment that the issue is a clear breach.
The garden furniture is probably not causing an obstruction (this will depend upon how large the Common Property is). As I mentioned earlier, an obstruction pertains to designated roads, walk ways and access routes and would be unlikely to apply to a lawn area unless the total lawn area is very small.
The furniture is probably not causing any damage to the lawn, particularly so if it is move able. Damage must be provable.
Using the Common property for move able seating would be acceptable, and is quite different from using (or abusing) the Common property area as a garden bed into which plants are grown.
I don’t know what the planter boxes are made from but if they are move able wicker cane structures then the use of the Common Property ‘as a garden’ does not appear to be relevant as the occupant has not planted any plants in the natural soil, nor have they planted a garden.
The situation would be different if the planter boxes were constructed of sleepers or koppers logs etc. In that case the occupant may be in breach of By-law 4 as the planter boxes would be permanent and are not move able.
All that being said, the occupant could formalise this issue by applying to the Owner’s Corporation for a license or a lease to use the Common Property immediately adjacent to their sliding doors.
A lease and a license are different.
A lease runs with the land (remains with the unit) and can be transferred to a new owner whereas a licence remains with a unit owner. If there is change of ownership of a unit with a licence, a new licence must be issued and approved for the new owner.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 112
Owners corporation may grant licence to use common property
112 Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner or occupier of a lot in the strata scheme or another person to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by a special resolution.
(2) A licence may be granted subject to terms and conditions.
Note : Division 3 of Part 7 enables owners corporations to make common property rights by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
Peter Gray – If the furniture is able to be moved then it is not permanent.
The hypothetical scenario of “fill(ing) an area of common property with whatever they like” would possibly trigger an ‘obstruction’ By-law (if your scheme has such a By-law). Although, ‘obstruction’ By-laws generally pertain to walk ways, and paths etc. From what you have described, the downstairs occupant is currently not causing an ‘obstruction’.
Is the furniture located on the lawn and does the furniture need to be removed when the lawns are mowed? If the moving of the furniture is creating an additional cost to the Scheme for the grounds maintenance contractor then the Committee can either ask the occupant to remove it when the mowing occurs.
Peter Gray – I agree with JT.
It appears that the ground floor occupant has placed items on the common that are not permanently installed, therefore it is unlikely that the ground floor occupant is claiming the area as their Exclusive Use. Also, there appears to have been no permanent barrier erected around the area that ‘excludes’ others from entry to this area.
The usage of an area, even on a continuing basis and for a long period of time, is not sufficient to acquire exclusive use rights.
Occupants are permitted to use Common Property. Whether they elect to make use of the Common Property or not is their own personal choice.
Unless there is a By-law restricting BBQs, BBQ smoke may drift from BBQs on balconies just as readily as it does from the Common Property lawn area.
You may have the benefit of a view being that you are on a higher floor, and the ground floor occupant has the benefit of easy access to the garden. C’est la vie!
If the occupant is creating excessive noise then you may be able to invoke the ‘noise’ by-law. Apart from that I don’t see that you have many other avenues of complaint.
Paul2000 – With something as significant as a garage closure I would suggest that too much information is much better than not enough information.
Perhaps a Notice should be placed in the Elevator, and a hand delivered Notice be issued and placed in each of the letter boxes.
As a Committee I would definitely not rely on the absentee Owners or the Real Estate Agents to pass on this information to the Tenants. That being said, in an ideal world where everybody did their job correctly, you would not need to do this.
Below is a comprehensive brochure outlining the acoustic qualities of the loose lay vinyl planks. You may find it useful as a reference.
It appears that there are ways to make this type of flooring perform better by way of an installation of a Regupol acoustic underlay. The thickness of the underlay can be either 3 mm or 4.5 mm.
Impact sound must be 62dB or less for multi-residential applications in accordance with standard ISO 717 – 2.
Apparently the loose lay planks are 62dB or 61dB with no underlay (depending on the thickness of the slab). This improves to 57dB and 55dB with the 4.5 mm underlay.
Puddn – It is very interesting, but also slightly disturbing, that the slab readings vary so much in your building!
A few interesting dilemmas are raised in your comment….
I am just wondering whether the unfortunate owners of the two apartments with ‘sub standard’ slab readings are receiving some assistance from the OC to ‘correct’ the problems with the common property slabs beneath their apartments. Or does the OC have an attitude of “too bad so sad” i.e. the OC doesn’t care.
The OC is responsible for the slabs. Is it also the responsibility of the OC to ensure that the slabs throughout the building have equal readings? After all, this is not something that would have shown up on the owner’s pre-purchase due diligence.
Are the two owners with the sub standard slab readings to be forever denied the ability to lay down a timber flooring? Are they OK with that situation, or are they concerned about it? Is there absolutely no other alternative for these two owners?
If little can be done about ‘beefing up’ the slab and the acoustic underlay of the flooring, can something instead be done about ‘beefing up’ the common property ceiling of the lower apartment that is attached to the common property slab?
I would not agree to paint the extension.
There are several reasons for my decision:
(1) The by-law removes from the OC the responsibility for all maintenance of the extension, including the exterior painting.
(2) Nothing in the by-law states that the OC is responsible for making any contributions to the maintenance of the extension. If the owner had wanted financial assistance from the OC then this should have been written into the by-law.
(3) The existing paint on the exterior should be in OK condition given that it was only painted 5 years ago. The owner of the extension should not be compelled by the OC to repaint at this stage.
(4) The repaint of the other parts of the building is not a significant colour change from the existing colour scheme on the extension so the extension paint colour should be allowed to remain as is.
(5) The owner of the extension should only be compelled by the OC to repaint the extension when painting is required as a condition on their maintenance obligations. Depending on the quality of the paint used this may not need to occur for another 10 years.
(6) When painting of the extension is required to be undertaken the owner of the extension should be made aware of the “Appearance” by-law (if you have it). At that time the owner should paint the extension the same colours as the common property in compliance with this by-law. The name of the paint colours should be made available to the owner of the extension to enable them to purchase the exact paint colour as that used on the common property exterior.
(7) If the owner of the extension does not believe that the OC decision is ‘reasonable’ then they have an option to dispute it.
I would have thought that the partition would require several different types of approvals:
(1) planning and construction approval by Council (see State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 [Subdivision 26 s252(b)], and
(2) approval by the OC and
(3) a By-law created – then approved at a General Meeting – then Registered.
From my reading of the Code it seems that the partition is not classified as an Exempt and Complying development. Subdivision 26 Minor building alterations (internal)
2.52 Development standardsThe standards specified for that development are that the development must:
(aa) not be an alteration to a food preparation area in food and drink premises, and
(a) if it is the replacement or renovation of a deteriorated frame member—be of equivalent or improved quality materials, and
(b) not include a change to the configuration of a room, whether by removal of an existing wall, partition or other means, and
(c) not cause reduced window arrangements for light and ventilation needs, reduce the size of a doorway or involve the enclosure of an open area, and
(d) not affect the load bearing capacity (whether vertical or horizontal) of a building, and
(e) not include a change to the fire resisting components of, or interfere with the entry to, or exit from, or the fire safety measures contained within, a building, and
(f) if it is the installation of new or replacement insulation material in a dwelling, it must be in accordance with Part 3.12.1 of the Building Code of Australia.
In my opinion the OC should not pay to paint the extension. The by-law contained a maintenance provision and therefore the OC is not responsible for the painting of the extension.
I am assuming that the owner paid for the initial painting of the exterior of his extension without requesting that the OC pay for it. If the extension is only relatively new then it will probably not require a repaint at this time, therefore the owner should not have to pay any additional painting costs at this time.
Perhaps this can be the “trade off” in this instance?
When it comes time to paint the building both now and into the future your OC should just paint all of the other walls of the building and leave the extension untouched.
If the owner doesn’t believe that this is a ‘reasonable’ action then they have the option to lodge a dispute
Your group within the Committee appear to have the majority.
From my understanding, you are the Chairperson so therefore you will Chair the Meeting by phone and you will control the meeting. You will need to be firm and not have the Secretary dominate the meeting or become unruly.
Who will be taking the Minutes of the Meeting – the Strata Manager???? How will this happen?
This is what I would do if I was you:
- You will need to inform the Secretary ASAP that the Secretary does not have the authority to refuse to include the Motions on the Agenda, and that you expect to see the Motions on the Agenda. I would do this by email and CC it to all Committee members and the Strata Manager.
- Only the Chairperson has the authority to rule Motions Out of Order. Motions can only be ruled Out of Order in a limited number of circumstances and the Secretary’s reasons for not including them on the Agenda (e.g. there is too much emphasis on “processes” and not enough on the issues involved) are not valid under the Act, and are not within the Secretary’s role to refuse to have included. See the circumstances below in (7).
- If the Motions are not on the Agenda then your next move is to propose them at the next meeting which it appears will be held by phone. Do this as early as possible in the Meeting. There will probably be an Agenda item about ‘Window locks’ or ‘Windows’ so this is where you will need to propose your Motions.
- Either of the other two members who support your Motion can Second the Motions. The 3 votes FOR the Motions should outnumber the 2 votes AGAINST the Motions. Your Motions should be PASSED.
- If one of your supporter Committee members cannot attend the meeting by phone then they can give you their proxy. Make sure that they comply with the regulations for proxies.
Access a form you can use from the Forms page on the Fair Trading website (or call 13 32 20 to ask for a copy).
Proxies must be given to the Secretary before or at the meeting. For large schemes, the proxy must be given to the Secretary at least 24 hours before the scheduled meeting. - The 2 members who are against the installation of the window locks are in serious Breach of the Legislation. Your Strata Manager knows this. The deadline for the installation has passed therefore your building is non-compliant. This will impact on your Insurance Liability.
- You, as Chairman can rule Out of Order any Motion that is raised by the Secretary or any other member to delay the installation of the window. A Motion to refuse to install the window locks or to delay the installation of the locks is a Motion that is in conflict with the Act. You have the authority to rule these types of Motions Out of Order under Section 15 in Schedule 2:
Section 15 Chairperson may rule certain motions out of order
The chairperson at a meeting may rule a motion out of order if the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable.
- You should explain to the Secretary that the Committee cannot delay this installation on the mere off chance that the windows will be replaced. Any approval for the replacement of the windows in your building is likely to be a few months away at least, and there is no guarantee that approval to replace all of the windows will be PASSED at a General Meeting. The Secretary does not have a ‘crystal ball’, and nor can he predict the future!
- At this Meeting I suggest that you endeavour to remove the Secretary from their position as Secretary. They are wielding their power inappropriately and do not have sufficient knowledge of the Act.
- You would need to propose a Motion to remove the Secretary and propose another member to be the new Secretary. You will need a person to Second the Motion and of course, you will need your 3 votes FOR the Motion to form a majority and have the Motion PASSED.
Flame Tree – The authority already exists within the Body Corp legislation to hand over to the Body Corporate Manager as much or as little of the duties of the individual committee members as they chose to hand over. Some Committees do almost no “work” and have almost no members. That is all well and good when things are running smoothly.
However, if all of the roles and responsibilities are handed over to the Body Corp Manager and the Committee are excluded then it becomes tricky when the Body Corporate Manager needs to be replaced.
That it why there are provisions within the Act that allow the Committee to take back the roles that they were granted in the Legislation at any time that they chose.
There are often misconceptions about the roles of the BC and the BCM. Below is an article that may be useful:
On the subject of video surveillance and by-laws the following link to a site in Canada makes for interesting reading, particularly regarding what is “reasonable” surveillance in by-law enforcement. The legislation may be different in Canada but the concept of what is ‘reasonable’ remains the same:
https://cci.ca/sites/default/uploads/files/newsletters/CCI-Spring-2012.pdf
See here for a ruling: https://www.oipc.bc.ca/orders/1417
Surveillance in strata may be an issue that deserves better safe guards under the Act.
Surveillance should be justifiable and should be the last resort after all other methods to enforce by-laws have failed.
There is nothing in the latest Queensland Government BCCM publication “Common Ground” to indicate that QLD intends to change the way Body Corps are run or managed. In fact, the latest issue (Number 17) has an item about Committees and who is eligible to be on a Committee but nothing about any Committee overseers.
https://publications.qld.gov.au/dataset/bccm-common-ground-e-newsletter
With regard to training for committee members, the Qld government provides a comprehensive free on line training program for committee members (and any interested person):