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Hamish – This NCAT article supports your findings. The article also outlines what is required for NCAT submissions:
https://www.ncat.nsw.gov.au/Pages/going_to_the_tribunal/evidence_and_witnesses.aspx
Lily – Below is a link to a legal comment that may help you with regard to your sliding door and who is responsible for the repair. Check the building plan and look for a thick black line.
https://www.lexology.com/library/detail.aspx?g=b70f2893-0bbb-4c7c-8b3c-a64c28bcdc1c
Regarding your insurance ….. you may be able to seek assistance from the strata scheme insurance? Check the strata insurance policy to find out if it covers loss of rent. It may be possible to ask for a loss of rental income reimbursement on the grounds that the unit was uninhabitable.
chesswood – There are companies that will visit your site obligation free and provide advice to your strata scheme. If your windows are unusual then this may be your best option.
https://www.approvedlocks.com.au/
Or, would this system of lockable window restrictors work for your scheme?
I would guess that all of these methods of communication would need to be approved by way of a By-Law before they were implemented.
Some considerations: It would be unreasonable to exclude some people from access to information either due to their inability to afford internet access and/or a computer, or their lack of computer skills. This form of communication may negatively impact the poor, the disadvantaged, and the elderly.
If these issues can be sorted out then it could be a good idea.
Franky’s update – It is important to find out who owns the garages before you proceed. Are the two garages marked as Exclusive Use on any of the strata documents for the two apartments that are using them?
Perhaps your upcoming meeting will reveal answers to these questions.
Franky – You would not be changing the by-laws. You would be changing the unit entitlements. Changing unit entitlements is a fundamental change.
Unit entitlement have an impact on all your strata costs e.g. levies, special levies etc.
You may be entitled to receive a reimbursement.
You will need to seek an Order from the Tribunal under [s236] of the Strata Schemes Management Act 2015 to reallocate the unit entitlements.
The solicitor’s split sounds about right but a valuer is the most qualified person to make this assessment. It will ultimately be the Adjudicator who makes the decision about the split based on all of the information.
You, as an owner, can apply for this Order. The owners corporation can also apply for this Order.
You will need to obtain a valuation by a qualified valuer of all of the apartments in the building to enable the Adjudicator to properly assess what is fair.
The relevant section is below. Please read it and come back to us with further questions if you have any.
236 Order for reallocation of unit entitlements
(1) Tribunal may make order allocating unit entitlements The Tribunal may, on application, make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order if the Tribunal considers that the allocation of unit entitlements among the lots:
(a) was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or
(b) was unreasonable when a revised schedule of unit entitlement was lodged at the conclusion of a development scheme, or
(c) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcelcould lawfully be used, whether with or without planning approval.
(2) Matters to be taken into consideration In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and to such other matters as the Tribunalconsiders relevant.
(3) Persons who may apply for order An application for an order under this section may be made by any of the following:
(a) an owner of a lot (whether or not a development lot) within the parcel for the strata scheme,
(b) the owners corporation,
(c) the lessor, in the case of a leasehold strata scheme,
(d) the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land.
(4) Application to be accompanied by valuation An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after the change in the permitted land use, of each of the lots to which the application relates.
(5) Qualifications of person making valuation The certificate must have been given by a a person who is a qualified valuer within the meaning of the Strata Schemes Development Act 2015 .
(6) Ancillary orders that may be made if original valuation unsatisfactory The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by an original owner, also order:
(a) the payment by the original owner to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and
(b) the payment by the original owner to any or all of the following people of the amounts (if any) assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order:
(i) the lessor, in the case of a leasehold strata scheme,
(ii) the owners corporation,
(iii) the owners of lots.
(7) Lodgment of order The owners corporation must ensure that a copy of an order made by the Tribunal under this section is lodged in the Registrar-General’s office no more than 6 months after the order is made. Nothing in this section prevents a person who is entitled to apply for an order under this section from lodging a copy of an order made under this section.
Note : Section 246 contains provisions with respect to the recording of an order made under this section.
Puddn – The case that Millie has mentioned is Dobrohotoff v Bennic [2013] NSWLEC 61. The complainant won the case on the grounds that the dwelling was being used as a ‘party house’ by large groups of people and was not being used in a way that a ‘family’ would use the house.
The Court held that a tenancy granted to persons residing in a group situation for periods of up to a maximum of one week for the purpose of “bucks and hens nights, parties or for the use of escorts or strippers is not consistent with a use or occupation by a family or household group in the ordinary way of life and therefore not consistent with the use of the property as that of a ‘dwelling-house’”.
‘Party houses’ in suburbia are only a small proportion of the short term rental market therefore the D v B case has limited precedent for most other short term rentals such as those in strata schemes. It could be argued that strata schemes already have by-laws that deal with the subject of parties, overcrowding, noise, and nuisance.
Gosford has since changed its LEP and now permits short term rentals as exempt development in certain circumstances.
stratus – There appears to be serious misunderstanding between you and both your committee and your strata manager.
What type of records are you looking for? If they are strata records that you are looking for then you, as an owner, cannot be stopped from looking at them.
Don’t forget that the committee represents the owner’s corporation. The committee and the strata manger look after the records on the owner’s behalf. The records do not belong to the committee and they do not belong to the strata manager. The records belong to all of the owners.
Try again with your request by doing just do as the Office of Fair Trade suggested in comment (2) above.
You, as an owner, have every right to look at the records. The word ‘owner’ is included in the group of persons who may inspect the records of the owners corporation – see Section 182 of the Strata scheme Management Act 2015.
Also, send your strata manager and your committee these sections of the legislation:
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 182
Requests for inspection of records of owners corporation
182 Requests for inspection of records of owners corporation
(1) Persons who may inspect An owner, mortgagee or covenant chargee of a lot in a strata scheme, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section.
(2) Form of request The request must be made by written notice given to the owners corporation and be accompanied by the fee prescribed by the regulations.
(3) Items to be made available for inspection The owners corporation must make the following items available for inspection by the person who makes the request or the person’s agent:
(a) the strata roll,
(b) any other records or documents required to be kept under this Part,
(c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation before its first annual general meeting by the original owneror the lessor of a leasehold strata scheme,
(d) if in its custody or under its control, the certificate of title comprising the common property or, in the case of a leasehold strata scheme, the certificate of title for the lease of thecommon property,
(e) any applicable 10-year capital works fund plan,
(f) the last financial statements prepared,
(g) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy,
(h) if a strata managing agent has been appointed, a copy of the instrument of appointment,
(i) if a strata renewal plan has been given to owners for their consideration under Part 10 of the Strata Schemes Development Act 2015 , a copy of the plan,
(j) any other record or document in the custody or under the control of the owners corporation,
(k) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, any other records (including records of the strata managing agent) relating to the strata scheme that are prescribed by the regulations,
(l) if a building manager agreement is in force or has been entered into but has not yet commenced, a copy of the building manager agreement,
(m) particulars of any service agreement entered into by the owners corporation,
(n) particulars of any agreement entered into with a local council for a strata parking area,
(o) if the request is made within 5 years after the end of the initial period, particulars of any orders made under section 27 and copies of any related contracts or other documents.
Maximum penalty: 5 penalty units.
(4) Meeting inspections For the purpose of complying with requirements for the giving of notice of a meeting of the owners corporation, the original owner (whether or not having ceased to be anowner) or an agent authorised in writing by the original owner is entitled to inspect the strata roll without payment on making a written application.
and
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.
berty – If you are happy to allow access then the contractor can obtain a key from the agent. The owner should have left a spare set of keys with the agent. Just ask the contractor to go to the agent and collect the key or ask the agent to go to your apartment and let them in. You don’t have to be there.
As for you being charged for another call out fee …. it will be the owner who will be charged by the service provider not you. However the owner may then try and pass this cost on to you. If you refuse to pay then the owner may elect to take this matter to the RTA Tribunal.
I guess you have to weigh up the pros and cons of whether its worth the anxiety of having this matter escalate.
berty – The one month Notice is sufficient time.
The agent, rather then the owner, has contacted you because the owner has given the agent the authority and responsibility to do this via the agency agreement.
In the circumstances of you working (and if you are uncomfortable having an unaccompanied trade person in your apartment in your absence) may I suggest that you either: (a) organise for a person that you know to be in attendance when the work is carried out, or (b) obtain a written guarantee that a Executive Committee member will be onsite in your apartment with the installer at all times, or (c) organise for the agent to be in attendance when the work is carried out, or (d) ask the owner to be in attendance when the work is carried out.
The Office Of Fair Trading states, in relation to owner or agent access, that:
“The law says that tenants must not deny or hinder your right to access if proper notice has been given. If your tenant refuses to allow you access to the premises, an application can be lodged with the Tribunal seeking an order allowing entry.”
Thank you Whoopi – I have included two different extracts below that you might find useful.
The first extract deals with tenant’s rights under the TRA 2010. You, as an owner, should have the same rights for Notice as a tenant and certainly not less rights than a tenant, so the tenant time frames for Notice can still be used as an argument in your case. It would be unreasonable for an owner in a strata scheme to have less rights than a tenant in that same scheme.
The second extract is from SSMA 2015 and is less specific about time frames for Notice.
“The amount of notice you or your agent must give to the tenant depends on the reason for entering the premises.
In addition to reasons below, you, your agent, or any other person acting on your behalf can access the property at any time for any reason if the tenant consents, which may also include agreeing to a shorter period of notice.
Reason
Notice required
To inspect the premises (no more than four times per year) At least 7 days writtennotice To do ordinary repairs or carry out maintenance At least 2 days notice To carry out urgent repairs, such as fixing a burst water pipe, a gas leak or a blocked toilet (see clause 19 of the lease for a full list of matters considered to be urgent repairs) None To comply with health and safety obligations, such as installing smoke alarms At least 2 days notice To obtain a property valuation (no more than once in 12 month period) At least 7 days notice To show a prospective tenant (only permitted in the last 14 days before the existing tenancy is due to end) Reasonable notice on each occasion In an emergency None If you have tried to contact the tenant and been unable to do so and have reasonable cause for serious concern about the health or safety of the tenant or other occupants None If you reasonably believe the premises have been abandoned None To show the premises to prospective buyers 2 weeks written notice before first inspection.
Subsequent inspections as agreed with the tenant or, if there is nothing agreed, no more than 2 inspections per week, with 48 hours notice each timeIn accordance with a NSW Civil and Administrative Tribunal order As determined by the Tribunal Time limits on access
In most circumstances, access is not permitted on Sundays, public holidays or outside the hours of 8am to 8pm. You must not stay on the premises longer than is necessary to achieve the purpose given for access. Where practical, the tenant should be notified of the time when access will be required. These limits do not apply in an emergency, to carry out urgent repairs, if the tenant agrees otherwise, if the premises are abandoned or if access is in accordance with a Tribunal order.”
SSMA Section 122 Power of owners corporation to enter property in order to carry out work
(1) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work:
(a) work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),
(b) work required to be carried out by the owners corporation by a notice given to it by a public authority,
(c) work required or authorised to be carried out by the owners corporation by an order under this Act.
(2) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.
(3) In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.
(4) In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division.
(5) A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section.
Maximum penalty: 5 penalty units.
(6) An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.
Puddn – Perhaps the SM might change their mind if your OC offered to pay extra for this service? It can take a long time to get these submissions both correct and concise.
If your SM was prepared to assist your OC for a fee then it would be the responsibility of your OC to read, approve, and sign off on the information before sending it to NCAT. Hopefully by doing this any liability(?) may shift to the OC rather than the SM. I am not a lawyer.
You could also use the services of a lawyer to write the submission for your OC.
T-world: I am playing ‘devil’s advocate’ here but it is part of the duties of the SM to inform the OC of all necessary compliance issues. Your SM may have given you the ‘gold plated’ list that would better stand up to any legal liability claims.
See below from the strataman site for a comprehensive assessment of what is required in NSW and why. I realise that you live in the ACT but similar arguments may apply:
Puddn – The strata manager is probably correct. It is unlikely that submitting NCAT applications would be part of the duties of the strata manager even though that may have occurred in the past.
You could always check the details of their management contract relating to duties to make sure.
Hi Whoopi – Can you clarify if you are a tenant or an owner as different legislation applies to each?