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It might be worth the cost of you or the OC hiring a private investigator to track down the owner’s contact details so that you and/or the Strata Manager can personally speak to the owner about these issues regarding the tenants.
The PI sites that I have had a quick look at state that a PI costs less than $400.00. Is your peace of mind worth $400?
You should not be harassed or feel threatened by a person in your building.
If you want to take the quick route then if I was you I would employ a PI myself and if you want to take the slower route then perhaps you can write to your Strata Manager and have this put on the Agenda of the next meeting. The OC may not approve the employing of a PI tho, so you might end up having to do it yourself anyway.
Below is some info about AVOs should you need it if the situation escalates. NB:Legal Aid may also be able to assist, (depending on your circumstances).
Do you know if the grandchildren have a registered tenancy agreement? Perhaps it may be possible for you to contact the Office of Fair Trading’s free tenancy and real estate complaint service and make a complaint about the tenants?
I am sorry to say that I don’t know anything about Ordinance 70.
However, sometimes when you make a major change to something that was once OK under an old Code but would not be acceptable if the same thing was built under the new Code then, any changes must reflect the standards of the new Code rather than the standards of the old Code.
Does that make sense?
A tiler would have a better idea about this, I would think (?)
In NSW, the Building Code of Australia (BCA) has replaced Ordinance 70 as the primary building code.
This document may help:
If you can’t tile over the existing tiles then perhaps this type of thing may suit your purposes if you don’t want your shower reno to involve waterproofing (i.e. if you don’t want to have the shower reno classified as a Major Renovation rather than a Minor Renovation):
It depends where the tiled wall is located within the Lot.
Generally, if the bathroom wall forms part of the wall that separates it from another Lot or from the Common Property then the tiles will be the OC’s responsibility. However, if the bathroom is totally within the Lot then the tiled walls should be owner’s responsibility.
If your bathroom fits within the second scenario then, so long as you don’t touch the waterproofing, you should be able to tile over the old tiles and/or paint the tiles and/or install a pre-formed shower or bath without a Special Resolution and without a By-law. Tiling over existing tiles should be classified as a Minor Renovation as it does not involve water proofing or structural changes. See https://www.legislation.nsw.gov.au/~/view/act/2015/50/historical2016-10-25/id112
The fact that no else in your scheme has created a by-law for re-tiling over existing tiles suggests that you should be OK without one.
special note- pre 1974 plans
The Strata Schemes (Freehold Development) Act 1973 commenced on 1 July 1974. One of the most significant changes involved the relocation of some boundaries from the centreline of a structure (i.e. wall, floor or ceiling) to the face or faces of the structure.The original legislation provided that the boundary between separate lots or between lots and common property was the centreline of the dividing structures being walls, floors or ceilings. Upon the commencement of the new legislation on 1 July 1974 these boundaries, for previously registered plans, moved to the inner face of the walls, the upper surface of the floors and the lower surface of the ceilings. The structure then became common property. Any walls or other structure which are between separate parts of the same lot remain as part of the lot and are not common property. This occurs even if the structure is shown on the plan. The most common example where these provisions create an issue is the wall within a lot between the living area and a balcony; in this case the wall and any door or window will remain as part of the lot and not become common property.
In some circumstances the plan may show a note indicating that the boundary is the centre (or face) of a structure. In this case the boundary remains in that position and is not relocated as described above.
With regard to plans registered prior to 1 July 1974:
- Any structures between separate parts of the same lot are part of the lot and are not common property.
- A structure between separate lots or between a lot and common property is common property.
- If the plan described by a note the location of a boundary relative to structure the boundary was not relocated.
Careful consideration should be given to any actions involving plans prepared prior to 1 July 1974
A kitchen is not designated as a wet area according to MBA NSW so it should not require waterproofing. Therefore a kitchen renovation is classified as a Minor Renovation.
Designated wet areas for waterproofing are: Showers = high risk; Bathroom/Ensuite = medium risk; Laundry/Laundrette/ WC = low risk.
Pre-formed showers with base and hob do not require waterproofing. The concrete flooring surrounding this type of shower only needs to be water resistant.
This document provides some guidance as to when and where waterproofing is required. See particularly the pages headed BCA Volume 2 Table 3.8.1.1
The Strata Manager is correct about the tiles. Both a by-law and a Special Resolution Motion are required. This is because the tiling and waterproofing are deemed to be a major renovation under the new Act.
You are correct about the OC being responsible for the maintenance and repair of the original tiles and associated waterproofing affixed to the common property walls at the time of registration of the strata plan.
After the OC has repaired and or replaced the faulty tiles and waterproofing, and if the original tiles no longer suit the modern aesthetic of your apartment, have you considered having the surface of the tiles repainted? This painting would be deemed to be a cosmetic renovation and no permission from the OC would be required. I have seen this process used quite effectively on various Australian ‘home shows’, particularly if it is carried out by a specialist company.
Re the balcony – On what basis is the OC taking you to NCAT about the balcony?
Safety is something that should be the highest priority in a strata scheme. Window safety is a big issue at the moment and this has been reflected in the new legislation. It is quite strange that balcony safety does not have the same priority. Both are equally as important in my view, particularly where children are involved.
Here are some things for to check: (1) Was your balcony compliant at the time that it was built, including the climbable features? NB: Amazingly, many balconies were not! (2) Does your balcony have structural issues e.g. rust? (3) Has the OC ever conducted a building report or WHS report where any defects were noted, and if so what has the OC done about it? (4) Do you have young children or grandchildren or visiting children who may be endangered by the non compliant balcony height, and climbable features, when they use the balcony?(5) Did you undertake a pre-purchase building inspection report and did it reveal any faults with the balcony, and if so did you notify the OC at the time? (6) What arguments did the upstairs owner use when they approached the OC to have their balcony replaced? NB: Perhaps you can replicate their arguments. (7) Do you or your family work from home? NB:Under the WHS Act, a person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.
You appear to have notified the OC about the problem 3 years ago. The OC have obviously decided to ignore you.
If there has not been an expert inspection and report undertaken on your balcony then I would recommend that you obtain one at your own expense as you will need to provide it when you defend yourself at NCAT.
Below is a link to a legal opinion (including some cases) that you might find helpful: https://www.lookupstrata.com.au/balustrades-regulations-strata-liability/
Many strata schemes use the Appearance of a Lot by-law (if they have one) as an argument to retain old balustrades and avoid the cost of replacing the old style balustrades with new, compliant, and modern balustrades.
In QLD there have been Tribunal decisions where the Appearance argument has been thwarted. The Tribunal’s argument has gone something like this …… if the OC wanted to have strict uniformity in the scheme then they have the option to introduce such a by-law. If your scheme has no ‘Uniformity’ by-law then there is no by-law that prohibits one Lot from appearing slightly different from another. Obviously another Lot in your building has a changed appearance of their balcony, therefore it would be inconsistent for the OC to use this tactic against you.
If you want more certainty and clarity as to what is, or isn’t, the responsibility of the OC or the Owner then perhaps you should write a Motion for the next General Meeting, and have the OC adopt the Common Property Memorandum. Your Motion could state:
That the Owner’s Corporation adopts the Office of Fair Trading Common Property Memorandum.
You would need to include a copy of the Common Property Memorandum in your Explanatory Material when you submit your Motion. The Memorandum is linked below.
Fortunately the new legislation (SSMA 2015) makes it clearer as to the obligations on the Owner and the OC with regards to renovation approvals.
You asked: Do we start from By-Law numbered one again as we have no “last numbered existing By-Law” as we have repealed Schedule 2 Model By Laws…or do I give it the next number for the Schedule 3 Model By Laws starting from number 20 as the last Schedule 2 Model By Law is numbered 19.
In my opinion you would be numbering the new by-laws from 20. Although the OC have repealed the by-laws (1 – 19) they have not yet been officially repealed by the LPI therefore they still “exist”. After Registration with the LPI, your new by-laws will state something like 1 – 19 REPEALED. The new by-laws will not include the actual wording of the repealed by-laws, merely the word REPEALED.
This will allow the previous by-laws to be historically recognised should this be necessary at a later time. Legislation that has been repealed has a similar recognition. New by-laws are not generally retrospective therefore recognising that previous by-laws existed at the scheme prior to the adoption of the new by-laws can be very important.
You will note that SSMA2015 at [s275] states:
The following are repealed:
(a) the Strata Schemes Management Act 1996 No 138,
(b) the Strata Schemes Management Regulation 2010.As stated at (F) you would need to include the full version of both the repealed by-laws (1-19) and the new by-laws (20 +).
Generally such entry is only permissible in an emergency. SSMA 2015 [s122(3)] or, by Tribunal Order.
[s122(3)] states: In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.
Without knowing more details, the situation that you described does not appear to fall within the definition of an “emergency”. There is no definition under the Act of an “emergency” therefore the ordinary dictionary meaning would probably apply.
“emergency” – a serious, unexpected, and often dangerous situation requiring immediate action.
Whilst the asbestos situation may arguably be dangerous the unauthorized entry to your Lot for the purposes of taking photos for a future AGM is hardly going to provide an immediate remedy to the dangerous situation. It would probably not be wise for the person who authorized the entry to your Lot in this manner to rely on [s122(3)] as a defense.
There seems to be no dispute that there is a recognition by all parties that the original parquet flooring is common property.
The issue seems to be whether the OC is responsible for merely repairing the floor or alternatively, totally replacing the flooring.
Is the parquet floor able to be repaired? If so then I would suggest that be the correct course of action.
However, you mentioned that the floor had been re-sanded and re-polished 3 times. Was the parquet flooring re-sanded by the OC or was it re-sanded by the owner?
If it was re-sanded by the owner then I would think that the owner would now be responsible for any repairs due to the fact that by taking on the repairs themselves 3 times over the intervening time they have now waived the obligation of the OC to become involved in repairing the flooring. If the previous 3 repairs were not authorised by the OC then how can the owner prove that were competently carried out? By undertaking this work without authorisation the owner may have damaged the common property.
The situation is slightly different if your OC has approved the adoption of the Common Property Memorandum at a General Meeting. The model Common Property Memorandum as outline by the Office of Fair Trading states that owners are responsible for sanding and re-lacquering the flooring. If so, then the OC would be responsible for re-glueing the parquet pieces to the slab but the owner would be responsible for re-staining and re-lacquering the floor.
I think that the OC has 2 choices to offer the parquet floor owner. Either (1) repair the flooring at the OC’s expense (that is the ‘generous’ offer) or (2) do not repair the flooring and do not replace the flooring i.e. do nothing about the flooring, due to the owner conducting their own unauthorised repairs on 3 separate occasions.
There is no obligation on the OC to repair or replace the flooring that is not damaged i.e. 87.5% of the flooring.
Option 2 allows the owner to take this matter to Mediation or to the Tribunal if they choose to do so.
I would not offer any cash money to fix the problems.
Here is a link to some legal opinion on the topic: https://hflawyers.com.au/why-owners-should-not-repair-common-areas/
kaindub – Fire Services recommend that you replace your smoke alarm (both battery powered and 240v hard-wired types) after ten years as it may start to fail after this period. A year of manufacture date is displayed on all smoke alarms.
The Office of Fair Trading Common Property Memorandum states at 3(h) that ‘smoke detectors whether connected to the fire board in the building or not (and other fire safety equipment subject to the regulations made under Environmental Planning and Assessment Act 1979)’
The Office of Fair Trading Common Property Memorandum link is here –
If your scheme has not adopted the OFT Property Memorandum then you could submit a Motion to be voted on by the OC at the next General Meeting stating:
That, in order to clarify the responsibilities for repairs, that the Owners Corporation adopts the Office of Fair Trading Property Memorandum.
(NB: You would need to include a copy of the Memorandum in your Explanatory Material.)
Incidentally, even if there is no CPM at your scheme the Owners corporation must repair anything in the ceiling.
I would assume that the hard wired smoke detectors that were installed in 2005 (at the time that the building was built) are located in the ceiling. This adds more weight to your argument that the OC should be responsible for the smoke detectors.
Common Property Memorandum – To discover whether the OC has adopted the CPM you will need to look at the AGM Minutes.
Hard wired smoke detectors with battery back up – see this comment from the Strataman website:
Repair & Maintenance
Under current legislation, the Owners Corporation is responsible for repairing AND maintaining smoke alarms IF the smoke alarms are hard-wired to the lot’s electricity supply with a backup battery or connected to a common fire board or panel. However, if the smoke detectors are stand alone and battery-operated, then the lot owner (or tenant) is responsible for checking and changing the battery. Ultimately, The Owners Corporation is responsible for replacing or repairing a faulty smoke alarm.
Based on the details that you have provided I would think that the OC should be responsible for the repair and replacement of your scheme’s particular smoke detectors. I would write to the OC and remind them of their obligations. Another option is for you to raise a Motion prior to the next General Meeting for the OC to resolve at the General Meeting. This will circumvent the Committee’s inaction.
Do you know anyone else in your building who would support you in having this issue resolved?
If your OC feels uncomfortable signing this document then I see no reason why the OC shouldn’t have a lawyer look over the Contract. A lawyer’s fee to provide this scrutiny will be a small price to pay compared to the overall Contract price. However, if too many changes are made then your OC may face the risk of the successful Tendering company pulling out and then you will be back to square ‘one’.
Adding further to my previous comment … if and when the Committee’s new By-law is approved by Special Resolution at the EGM and you believe that it is harsh, oppressive, unconscionable, and/or unreasonable then you have an option to seek an Order from the Tribunal to have it repealed:
SSMA 2015 Section 150 ORDER INVALIDATING BY-LAW
(1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.
(2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).
(3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.