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Mr Wong – By-laws must not be unreasonable.
If an apartment owner wants to keep their cat indoors 24/7 then there is absolutely no danger to wildlife. You are making an assumption that all cat owners are irresponsible.
Cats are one of the types of animals most suitable for keeping indoors in an apartment. To ban an owner from keeping a cat just because some owners permit their cats to roam is far too stringent in my opinion, and is therefore unreasonable.
Should all dogs be banned because some irresponsible dog owners permit their dogs to urinate and defecate on common property?
Pets are generally not permitted on common property. That includes cats and dogs. A breach notice can be issued to a pet’s owner if any pet is seen on common property.
Millie – The sad thing is that the DA appears to be so prescriptive and restrictive in its wording and its intent (“all residential lots must be occupied by an owner/occupier or someone holding a residential tenancy agreement”) that it appears that it would preclude and exclude the owner allowing relatives of the owner from staying in the apartment, or house swaps etc. Unintended consequences perhaps?
I am not sure whether you have stayed in Airbnbs in cities such as Barcelona that ban Airbnbs – we have. We stayed in a popular Barcelona Airbnb one month ago for one week. We were not even aware at the time that Airbnbs were banned. All that was required when we arrived was that we signed a Residential Tenancy form with the dates of the holiday being the last week of the Tenancy. We vacated after our week’s holiday at the end of the Tenancy.
The DA that you mentioned can possibly also be circumvented in the same way.
Although Barcelona City Council has employed over 40 inspectors to crack down on short term holiday lets these measures have so far been largely ineffectual.
https://www.spanishpropertyinsight.com/2016/07/07/barcelona-threatens-airbnb-others-fines-e600000/
If the concept of inspectors is not successful then another alternative is for the Councils to licence the holiday lets and make their locations transparent. A licence fee could be paid by the owner, addresses given, and owner’s contact details recorded.
The fee could be used by the Council’s to employ ‘bouncers’ who would work at night. They would have the authority to issue on the spot evictions for breaches of Council noise and nuisance codes in these properties. Records could be kept of the properties that become ‘problem’ properties and the owner of these properties could have their licences revoked.
In a Hotel it is the Manager who can evict an unruly guest. The Council’s ‘bouncer’ could be given the same authority as a Hotel Manager. This would avoid the need for police to become involved in noise and nuisance issues.
If you cannot exclude it then at least you can control it. Perhaps this idea is worth some thought?
Mould is a tricky issue. If the cause of the mould is located outside of the boundaries of your lot, including inside the boundary walls then the Owner’s Corporation would be responsible for repairs and compensation. However, if the cause of the mould is within the boundaries of your lot such as from poor ventilation then you, as the lot owner, will be responsible for the damage.
If you can prove that the mould problem is not a result of internal condensation caused by the negligence of your tenants; and can include the moisture readings from the interior of the common property ceiling; and can include the past history of OC roof repairs including the repair failures; and can prove that the OC were negligent in their lack of repairs to the OC ventilation system, then you can mount a good argument for the OC being responsible.
Also, if you are unhappy with the opinion of the plumber and/or contractor who carried out the original work then you have an option to seek another independent opinion that may be more satisfactory.
You may also want to obtain an independent mould assessment from a company such as this: https://www.sesa.com.au/mould-testing-inspection-sydney-nsw-act.html
dwmyhome – Is your apartment on the top floor directly under the common property roof?
The exhaust fans mounted within “Structural cubic space” e.g. communal ducting or a false ceiling which is designed to carry communal pipes etc or outside the lot are the Owner’s Corporation (OC) responsibility to maintain.
The OC is responsible for damage to a unit after a water leak when the OC effected a repair. This should include your new paint work. It appears as though the second attempt at fixing the leak has not worked.
The Owner is generally responsible for dampness in a lot coming from condensation from the inside of the unit.
The condensation could be coming from various sources. Numbers 2 – 5 below are all owner responsibility:
- A burst pipe or leak coming from outside the unit, such as from a unit above, or the roof. As noted above the OC is responsible for this condensation.
- The temperature difference between the heated interior and cold exterior of a building in winter, which can form condensation on walls and windows. Are the tenants using an electric blanket in their bedroom?
- Hot showers on cold mornings where further condensation can cause condensation throughout the whole apartment, particularly when an exhaust fan is inoperable and the bathroom door is left open.
- Windows being closed during the day while occupants are out, or not opened sufficiently wide to vent the apartment.
- Units that don’t receive much sun during the day.
Possible solutions to your condensation problems are:
- For the OC to find and repair the leaks AND
- For the OC to repair the common property fan.
- For the OC to trim trees that may be shading the building and preventing sunlight from falling on your apartment.
- For you to install dehumidifiers in your apartment which would remove humidity and condensation from a warm home during winter without having to open any windows.
If I was you I would be immediately contacting the OC by email and/or letter. You could state that the time delay has been unreasonable and that you demand that the leak and the fan problems be rectified within 7 to 14 days. You could state that if this does not occur then you will be seeking Mediation through the Office of Fair Trading.
Mediation is free.
pema – The answer to your question depends upon what your by-laws say (or don’t say) about timber floors? Both scenarios are covered below.
If the by-laws say that timber flooring is not permitted in the bedrooms then you have a couple of options. They are:
1. Accept the by-law and keep the carpet. There are some carpet types that are better than others for allergy sufferers such as the Brease carpet range and Dunlop Comfort CHOICE underlay. OR
2. Put a Motion on the Agenda of the next General Meeting requesting that a relaxation of the by-law be permitted in your circumstances and asking permission be granted for you to install timber flooring in your bedroom. You would need to guarantee that the highest quality acoustic underlay was to be used. OR
3. Put a Motion on the Agenda of the next General Meeting to totally change the ‘no timber flooring in the bedroom’ by-law to one that is accepting of timber floors in bedrooms based on certain conditions being met i.e. acceptable acoustic underlay etc. OR
4. Challenge the ‘no timber in bedroom’ by-law through the proper channels (i.e. NCAT) by claiming that the by-law is unreasonable.
NB: Whether you are quiet in the bedroom is immaterial. The next owners or tenants may not be as quiet as you are.
If there is no by-law about timber floors then the installation of timber flooring is considered to be a minor renovation.
Here is an extract from the Strataman site reagarding timber flooring:
‘In the absence of a by-law already registered relating to this issue, installing floorboards is considered a “minor renovation” under Section 110: Minor renovations by owners AND Section 109: Cosmetic work by owners of the SSMA 2015.
Prior consent is required from the Owners Corporation. The biggest issue is noise transmission and a lot owner MUST ensure that this doesn’t impact other owners. If, after the installation, it IS found that any noise transmitting from your lot (due to the floorboards) disturbs your neighbours, you could easily find yourself at NCAT and you may be forced (by an NCAT order) to remove or cover the floorboards to stop the noise affecting others living in your Strata Scheme. Therefore, the wisest course of action would be to make sure the right acoustic measures are taken BEFORE the installation and, through the use of the highest grade, sound proofing underlay possible, avoid any conflict after the installation.’
Another useful link is here:
https://nsw.strata.community/wp-content/uploads/2016/08/Whos-Responsible-SCA-NSW-Aug-2016.pdf
Don’t forget to check the conditions of your Exclusive Use by-laws …. and check whether the wall and/or fence has a thick black line on the strata plan or a thin, dotted, or no line. Different types of lines (thick and thin etc) mean different things.
It is difficult to make a comment without seeing your plans and your Exclusive Use conditions.
In general: Fencing, if shown as a thick line on the strata plan, will be deemed to be a common wall and be an OC responsibility. See also the comment above relating to ‘cosmetic work’ to common property.
In general: Within a Courtyard is generally Owners responsibility. However, the structural wall of the building will be an OC responsibility.
Any Deck, pergola, privacy screen, louvres or steps within a lot (regardless of
whenever that item was constructed within that lot) are generally Owner responsibility.
In general: Fences, if they are shown as a thin, dotted or no line on the strata plan are treated in accordance with the Dividing Fences Act and are treated as follows.
i. Divides two lots. Each owner is responsible 50%/50%.
ii. Divides one lot from common property. Owner 50% and the OC 50%.
iii. Divides one lot from the adjoining property. Adjoining owner 50% and the OC
50%.See this link for more details:
Casuarina – Are the timber deck and the steps within the Exclusive Use courtyard or are they external to the courtyard?
If they are internal then generally they would be the Lot Owner’s responsibility to maintain. Whether or not this is so depends upon the wording of the Exclusive Use By-law.
If the deck and steps are external to the Lot then the OC should be responsible for the maintenance.
However, if the Lot owner wishes to keep maintaining these areas that are external to their Lot (but directly connected to their Lot) at their own expense, particularly if they are only used by the individual Lot owner, then the Act appears to condone this work. ‘House proud’ Owner’s often like to undertake this types of work themselves. If the same stain as the original stain is being used by the owner then that should be OK.
They key word is ‘connection’ in
. There can either be a broad interpretation or a narrow interpretation of the word ‘connection’.Cosmetic work by owners
109 Cosmetic work by owners
(1) The owner of a lot in a strata scheme may carry out cosmetic work to common property in connection with the owner’s lot without the approval of the owners corporation.
(2)
“Cosmetic work” includes but is not limited to work for the following purposes:(a) installing or replacing hooks, nails or screws for hanging paintings and other things on walls,
(b) installing or replacing handrails,
(c) painting,
(d) filling minor holes and cracks in internal walls,
(e) laying carpet,
(f) installing or replacing built-in wardrobes,
(g) installing or replacing internal blinds and curtains,
(h) any other work prescribed by the regulations for the purposes of this subsection.
(3) An owner of a lot must ensure that:
(a) any damage caused to any part of the common property by the carrying out of cosmetic work by or on behalf of the owner is repaired, and
(b) the cosmetic work and any repairs are carried out in a competent and proper manner.
(4) The by-laws of a strata scheme may specify additional work that is to be cosmetic work for the purposes of this section.
(5) This section does not apply to the following work:
(a) work that consists of minor renovations for the purposes of section 110,
(b) work involving structural changes,
(c) work that changes the external appearance of a lot, including the installation of an external access ramp,
(d) work that detrimentally affects the safety of a lot or common property, including fire safety systems,
(e) work involving waterproofing or the plumbing or exhaust system of a building in a strata scheme,
(f) work involving reconfiguring walls,
(g) work for which consent or another approval is required under any other Act,
(h) any other work prescribed by the regulations for the purposes of this subsection.
(6) Section 108 does not apply to cosmetic work carried out in accordance with this section.
Ali – The SM is wrong. You are an owner, (and you are on the SC), therefore you have a right to examine the Roll under section 108 of SSMA 2015. Ask the SM to quote to you which section of any Act precludes you from searching the Roll – I guarantee that they won’t be able to provide one.
If the SM remains ‘pig headed’ about this then perhaps they should be replaced with another SM at the next General Meeting.
You can also go to the Title’s Office and search for the Owner’s addresses that way – but it is far easier to go through the SM.
A link to information about this issue is here:
Amendment: Apologies – I quoted previous Act rather than current Act. The relevant sections is
STRATA SCHEMES MANAGEMENT REGULATION 2016 – REG 42
Inspection of records
42 Inspection of records
For the purposes of section 182 (3) (k) of the Act, the owners corporation must make available for inspection the accounting records and other records relating to the strata scheme that are kept by the strata managing agent.
david2708 – I would be asking that the OC pay for the structural engineer’s report on the common property problems. A builder is not qualified to assess whether there are structural problems, though they may be able to take a good guess at it.
As far as costs go … I paid $770 for a structural engineer’s report on my 2 BRM unit when I wanted to take down a few non structural wall and change my bathroom formats. A structural engineer’s report was a requirement of my OC’s by-laws. It was well worth it as all has been approved!
It would make things easier for your engineer if you have the original structural drawing plans of your building. Does your Strata Manager have these on record?
From lawaccess.nsw.gov.au comes this suggestion for finding out details of the address of an absentee neighbour so I am guessing the same process would apply for an absentee owner within your strata scheme.
“Your local council will generally have the address and contact details of the owner of the property neighbouring yours. The council may agree to give you this information. You can:
- make an informal application for access to information, or
- fill out an ‘Access Application’ form.”
You could also try a title Search. A last resort may be to employ the services of a solicitor, or a private investigator.
Can you speak to the grandchildren and ask for the address? Can you explain to the grandchildren that preparing and maintaining the strata roll (including an address for service of notices) is mandatory and if not maintained may result in a fine?
SSMA 2015 [s177] and [s178] outline this requirement.
177 Owners corporation must prepare strata roll
An owners corporation must prepare and maintain a strata roll in accordance with this Division.
Maximum penalty: 5 penalty units.
178 Content of strata roll
(1) Information about lots The following information must be recorded in the strata roll in relation to a particular lot in the strata scheme:
(a) the name of the holder of the estate in fee simple in the lot (in the case of a freehold strata scheme) or the holder of the leasehold estate in the lot (in the case of a leasehold strata scheme),
(b) an address for service of notices,
(c) an Australian postal address, and an email address if the holder has one, if not provided as the address for service,
(d) the name of the holder’s agent (if any) appointed in accordance with this Act and the agent’s address for service of notices,
(e) information provided under a strata interest notice,
(f) information provided under a tenancy notice.
david2708 – If you live in NSW then the repair to the crack on the interior of an exterior boundary wall will generally be an OC responsibility to repair.
See this table from the Office of Fair Trading:
“If there is no Common Property Memorandum, the following will generally apply.Part of the property
Who is responsible?
Ceiling Owners corporation must repair anything in the ceiling However, there may be instances where the owner is liable if they have made improvements to the ceiling. Walls Owners corporation must repair anything in the boundary walls. The owner must repair all walls within the lot. Carpets The owner must repair and maintain carpets in the lot. The owners corporation repairs and maintains common property carpets, such as carpets in the hallways. Light fittings If it is recessed in the ceiling, it is the owners corporation’s responsibility. If it hangs into the lot, it is the owner’s responsibility. Roller door of garage Repairs to the boundary roller doors are owners corporation responsibility. Balcony Balconies are generally the responsibility of the owners corporation. The installation of vents may be something that the OC may consider worthwhile, albeit that the OC may not legally be required to do so. The cost of continuing to maintain the interior of the exterior boundary wall may end up being more burdensome than the cost of installing vents.lynette – I am not sure what you mean by “EC Meetings by schedule”?
The tenant representative is an option that, under the Act, must be offered to the tenants, under certain circumstances. The option does not need to be actually exercised by the tenants if the tenants don’t wish to become involved in this way. It does not appear that the EC and OC can deny this option.
The Office of Fair Trading describes it this way:
“In strata schemes where at least half of the lots are tenanted, the tenants have the right to nominate a tenant representative to the strata committee.
The tenant representative is entitled to:
- receive a copy of the agenda and any minutes of meetings held
- attend and speak at strata committee meetings. However, they can be asked to leave the meeting if financial issues are to be discussed.
The tenant representative does not have a vote. They cannot make up the quorum of a meeting (that is, the minimum number of people needed for a vote to be valid).”
Dudley – Have you considered the option of contributory negligence i.e. both parties being negligent?
This option considers that the following chain of events may have occurred – the OC may have have been responsible for not repairing the latch in a timely manner, however the additional damage may have been exacerbated by the Tenant’s subsequent behaviour.
A response to this option would involve the OC obtaining a quote and then the OC and the Owner agreeing to pay a proportionate amount of the repair cost depending upon the level of negligence e.g. 50/50, 60/40 etc.
The OC can either repair the gate and then seek reimbursement of the Owner’s proportion from the Owner, or can wait until the Owner provides their proportion.
However, be mindful that if this gate provides security to the Lot (assuming that the gate is located in the common property wall) then there is a strong argument that this gate needs to repaired as quickly as possible. If not repaired quickly then the OC may find itself responsible for the cost of any damage or theft of the occupant’s property now that the gate no longer provides security to the courtyard.
I would advise the OC to repair the gate ASAP and then seek compensation from the Owner.
The OC may have largely avoided this situation had the latch been fixed from the outset.
The issue isn’t the private courtyard per se … the issue is where the gate is located. Check the boundary line on the building plan. Without seeing it I am assuming that the gate would be in a common property boundary so therefore the gate would be a common property maintenance issue.
I believe that the OC would have been responsible for repairing the latch when the problem first occurred, and the OC is still responsible for repairing the latch.
Was the OC notified about the latch when it first broke? Did any of the adjoining resident owners notice that the latch needed repairing, and did they just ignore it?
It is the general responsibility of the Tenant to report this type of maintenance issue to their Agent, who then passes it on to the Owner, who then passes it on to the OC. However, sometimes Tenants do not know what to do when they face a maintenance issue such as this.
Now the issue has become worse because the initial repair was not undertaken. However, the OC is still responsible for all the repairs of the gate.
In my opinion it will only become an Owner responsibility for the common property gate repairs if there was deliberate and wanton destruction by the Tenant. This would be a difficult case to argue under the circumstances.