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And here’s more information on this issue that you may find useful from Bannermans Lawyers:
A summary of the issues is here, along with many answers to your questions:
https://www.lpi.nsw.gov.au/__data/assets/pdf_file/0011/25949/Access_to_neighbouring_land.pdf
Can I suggest that, in addition to your other requirements, that your OC creates a clause whereby a penalty must be paid by the developer to your OC for every day that the scaffolding remains on your common property after the 6 month limit? I am sure that the developer has these types of clauses with his subbies!
Such an agreement may need approval by the OC because your OC is entering into a contract for the use of the OC common property. In which case the neighbouring developer should also pay for the cost of the OC meeting.
rebekah20p – You said “i understand that because a garage is not a livable area the OC doesn’t need to fix it as it doesn’t need to be waterproofed etc.”
In my opinion the OC does need to fix the leaking issue in your garage. I am assuming your garage is an internal subterranean garage. The mere fact that the area is not a livable space should not excuse the OC from their duty to keep this area dry. If the area was dry when the property was built and was dry when you purchased your property and now it is wet then that indicates that a problem has developed with the original waterproof membrane and maintenance and repair is required.
Water leaking may cause structural issues. Also, your property could become damaged if the garage floor is becoming wet, and as you mentioned, the floor could become hazardous and slippery.
If the garage wall – floor junction is below ground level and would be difficult to repair from the outside of the wall then you may be interested to know that there are ways to waterproof the wall and the junction from the inside of the wall (the negative side). I have had a very favourable first hand experience with an injectable negative applied waterproofing.
You might like to suggest this method to your OC if it is applicable to your situation.
supersleuth – See below for an extract from the NSW Government Registrar General’s Guidelines which should answer your questions. My understanding is that the windows that you are referring to would now be classified as common property unless the building plan has a note on the plan saying otherwise. Therefore the window locks on your apartment would be the responsibility of the OC.
“Pre 1974 plans
The Strata Schemes (Freehold Development) Act 1973 commenced on 1 July 1974 and replaced the previous legislation Conveyancing (Strata Titles) Act 1961. Transitional and savings provisions where contained in the new legislation which had affect upon previously registered plans. 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.”
(My underlining is for emphasis only and does not form part of the original document).
In my opinion your EC is overstepping their boundaries in a number of areas.
It is the OC and not the EC that should be making decisions about painting costs and paint colours. The EC cannot opt out of responsibility for the upkeep of the common property without being authorised to do so by the OC via a Special Resolution.
It is important to note that the opt out provision in [s106 (3)(a)] is only possible ‘if it does not detract from the appearance of any property in the strata scheme’. It is highly likely that the appearance of the building will be compromised if some people paint parts of the building themselves, or others cannot accomplish this task.
It is my understanding that the painting should not proceed in the manner in which you stated.
In addition, subsection (1) of SSMA 2105 [s106] uses the term “must” which means the duty to repair and maintain the common property is a strict duty.
Does the EC have a spending limit … if so what is it? Do you think that the EC are dividing the painting up into smaller phases to enable them to ‘massage’ these decisions about how to paint the building into their spending limit and thus avoid going to the OC for a decision? If so the EC are wrong.
From my experience in Qld, and from reading Qld Tribunal decisions, a painting job (or any job!) cannot be be divided into smaller phases merely to fit within an EC spending limit – with the intention of taking away control from the OC. The total cost of the job should be agreed to in the one Motion. This would generally be by way of a simple majority Motion at an OC meeting.
Similarly with the paint colours. The EC has no authority to change the paint colour. The EC can only agree to a paint scheme if it is very similar to the old paint scheme. Any new and ‘wild’ colour scheme must be approved by the OC by a Special Resolution as it is deemed to be an ‘improvement’ as it changes the appearance of the common property.
In summary:(1) your EC cannot make decisions it does not have the authority to make, and (2) the OC cannot opt out of their strict duty to repair and maintain the building if it impacts on the appearance of the building, and (3) any change to the appearance of the building (i.e. change of paint colour) is deemed to be an improvement and requires a Special Resolution at a General Meeting by the OC.
Can you get yourself onto the Committee at the AGM? It might be easier for you to change things from ‘within’.
Are you planning on attending the AGM?
Do your committee know how to use the internet? If they don’t can I suggest that you ask the Strata Manager to provide some photocopied “Strata Living – Get Involved” booklets (48 pages) from the site below which explains how strata works, and also Schedules 1 and 2 from the SSMA 2015:
https://www.fairtrading.nsw.gov.au/pdfs/About_us/Publications/ft045.pdf
You can nominate yourself for the Committee at the AGM by going through the steps in [s5(5)] Schedule 1 SSMA 2015 outlined below:
5 Nomination of candidates for election prior to meeting
(1) The written notice of an annual general meeting is to include a call for nominations for members of the strata committee at least 7 days before the annual general meeting of an owners corporation.
(2) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may nominate a person for election as a member of the strata committee.
(3) The nomination is to be made by written notice given to the secretary of the owners corporation or, in the case of the first annual general meeting, to the convenor of the meeting, that states the name of:
(a) the person nominated, and
(b) the person making the nomination and that the person nominated consents to the nomination.
(4) The secretary must include the nomination in the notice of the meeting at which the election is to take place. Notice of any subsequent nomination is to be given by the secretary at the meeting.
(5) A nomination may be made at any time before the election is held and may be made at the meeting.
(6) An owner or a person may make a nomination even if the owner or person cannot vote because the owner is an unfinancial owner.
You can request another General Meeting to vote on your Common Property repair Motions at any time if you can encourage 25% of your owners to support your request. If you are able to attend the General Meeting and speak at the General Meeting then you could perhaps gain your required support to call another General Meeting at that time. I would advise you to obtain quotes and submit your Motions as quickly as possible. You may be able to use the previously acquired quotes if they are still current.
Unfortunately there is no requirement under the SSMA 2015 for notice to be provided to owners that an AGM is pending. It is the responsibility of the owners to submit Motions prior to the sending of the Agenda. Usually an owner can ascertain when an AGM may be called based on the date of the AGM immediately preceding it, however, this can be inexact.
It would be advisable to submit your Motion regarding Common Property repairs as soon as you have crafted it so it gets included in the next General Meeting. You can also obtain quotes for the repairs and include them within your Motion so as to hasten the approval process.
It may be advisable for you also to craft and submit a Motion that requires the OC to hold Committee Meetings (perhaps 2, 3, or 4 Committee meetings) throughout the year so as to promote transparency of decision making.
Schedule 1 of the SSMA 2015 states that:
7 Notice of general meetings other than first AGM
(1) This clause applies to general meetings other than the first annual general meeting of an owners corporation.
(2) Written notice of a meeting must, at least 7 days before the meeting, be given to each owner.
(3) Notice of a meeting must also be given, at least 7 days before the meeting, to each first mortgagee or covenant chargee on the strata roll if an item on the agenda is one in which the mortgagee or covenant chargee may cast a priority vote.
Note : A priority vote may be cast in the circumstances set out in clause 24.
(4) Nothing in this Part requires an owner to give notice of a meeting to himself or herself.
ArthurBaker – From my understanding … the Agent had no authority to make this decision on your friend’s behalf. The only excuse that the Agent may have is if your friend was not able to be contacted at the time of the event. However, even if that proved to be true the period for goods collection is usually 14 days.
The property was effectively being used to store the deceased’s goods until the collection of the goods by the deceased’s family or friends therefore it is reasonable that an ‘occupation fee’ be charged i.e. a day’s rent for each day that the goods are stored on your property. The estate of the deceased tenant should be responsible for the payment of the outstanding rent.
Your friend may need to speak to someone from the Office of Fair Trading and/or seek assistance from NCAT if the Agent does not reimburse your friend for their unauthorised decision, or your friend is unable to be reimbursed for loss of rent from the estate of the deceased person.
See this link to the correct process for collection and/or disposition of goods, and any fees that may be charged.
Some advice from Your Investment Property Magazine:
What you should do in the event of a tenant’s death
- Check whether you have a current landlord’s insurance policy
- Clarify the insurance provisions to determine whether rent arrears and future rent loss are covered in the event of a tenant’s death
- In cooperation with the family, remove the tenant’s belongings
- Clean the property, with the aid of professional cleaners if necessary
- Source a copy of the tenant’s death certificate – insurance companies will require a copy of this, which might not be available until at least four weeks after the tenant’s death and can be sourced from the deceased person’s family
- Landlords who are unable to obtain a copy of the death certificate should contact their insurance company for further advice. Some insurers might accept a death notice from the newspaper in lieu of a death certificate
- Begin advertising the vacancy as soon as is feasible, keeping written evidence of the advertising activity to assist with the insurance claim
- When the property has been re-let, submit an insurance claim with relevant supporting documentation
- Act with care and sensitivity.
See below for what is required for a termination notice when a tenant dies:
RESIDENTIAL TENANCIES ACT 2010 – SECT 108
Death of tenant
108 Death of tenant
(1) On the death of the sole tenant under a residential tenancy agreement, either the landlord or the legal personal representative of the tenant may give a termination notice to the other person.
(2) The termination notice may specify a termination date that is before the end of any fixed term of the residential tenancy agreement if it is a fixed term agreement.
(3) The Tribunal may, on application by a landlord or the legal personal representative of the deceased tenant, make a termination order if it is satisfied that a termination notice was given in accordance with this section and that vacant possession of the residential premises has not been given as required by the notice.
(4) The legal personal representative of a deceased tenant who is given a termination notice by the landlord may give vacant possession of the residential premises at any time before the termination date specified in the termination notice.
(5) The estate of the deceased tenant is not liable to pay any rent for any period after the legal personal representative gives vacant possession of the residential premises and before the termination date.
Mailbox – Yes. It is possible for the OC to grant a lease or a licence (by Special Resolution) over the use of common property in front of the garages. It is also possible for the OC to charge a fee for this grant. The relevant sections are below as is a link to an explanation about the differences between a lease or licence, and the process involved.
https://www.strataconsultants.com.au/quick-guide-to-leases-and-licences-over-common-property/
and
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.
(3) Without limiting this section, a licence may be granted under an agreement with the local council for a strata parking area under section 650A of the Local Government Act 1993 .
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 113
Agreement for payment to owner of consideration on transfer or lease of common property
113 Agreement for payment to owner of consideration on transfer or lease of common property
An owners corporation may, in accordance with a special resolution, make an agreement with an owner for the payment to the owner of:
(a) the whole or any part of the consideration under any transaction proposed to be entered into by the owners corporation under Division 6 of Part 2 of the Strata Schemes Development Act 2015 , or
(b) any money payable to the owners corporation under a common property rights by-law.
GP – It is illegal to live in a strata garage. You may have missed it but a response to your question was posted 4 days ago. Click on the link below:
http://www.flatchat.com.au/forum/neighbour-noise/neighbour-subletting-garage/#p19702
gme – I am finding your request for advice difficult to understand but I will take a ‘stab’ at it …..
If a fence has accidentally been erected in the wrong place and a survey has determined that the fence has been erected in the wrong place then the fence should be relocated to the correct place. It should not matter how long that it has taken to discover the error. (Things get technically trickier after 12 years but that is another story!)
Not all land sizes need to be exactly the same to create an exact same entitlement. If you believe that your entitlement should be adjusted then you have the option to take this matter to the Tribunal.
See here for a legal opinion and a case note on changing unit entitlements:
https://lawyerschambers.com.au/what-are-unit-entitlements-and-can-they-be-changed/
See here for a legal opinion on changing boundary fence lines:
https://www.andersons.com.au/lawtalk/2015/june/the-law-and-encroachments/
A positive covenant under the Conveyancing Act 1919 [s88E] has been created over the land upon which your friend’s scheme sits by the State Environment Planning Policy (Housing for Seniors or People with a Disability) 2004. In this situation the purpose of the positive covenant is to place restrictions on the use of the land.
If the covenant conditions have been breached then your friend may be able to seek relief from the situation by writing to the Strata Manager stating that if the situation is not rectified immediately then your friend will exercise their rights under SSMA 2015 [s234]. This may be enough to make the SM and the committee do the right thing both now and into the future.
If it doesn’t, then your friend may need to apply to the Department of Planning and Environment and/or the council requesting that the DPE apply for an Order from NCAT to enforce the positive covenant. The relevant legislation is below:
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 234
Order enforcing positive covenant
234 Order enforcing positive covenant
(1) The Tribunal may, on application by an authority having the benefit of a positive covenant, order an owners corporation for or owner of a lot in a strata scheme to comply with an obligation imposed by the covenant and relating to the maintenance, use, repair or insurance of a building or lot in the scheme, if the Tribunal considers that the owners corporation or owner has failed to comply with the obligation.
(2) If the authority has been refused an injunction under section 88H of the Conveyancing Act 1919 , the Tribunal must not make an order to the same effect as the injunction refused.
Colt12 – My next question is: You stated that the property was restricted to those over 55 or those with a disability (i.e. a SEPP Seniors Living 2004 property) . Was the 43 year old tenant classified as having a disability?
cj185 – Does the rental apartment have an electric hot water system that is cutting in over those times, or is leaking? A hot water system would be an Owner’s responsibility to repair.
If it is an electric HWS then perhaps you could advise your Agent that the HWS is faulty. The Agent would then need to arrange a plumber to look at it – at the owner’s expense.
Colt12 – Is your scheme a genuine ‘retirement village’ that is covered by the Retirement Villages Act 1999 and the Retirement Villages Regulations 2009, or it a ‘residential community’ where the Developer has used the over 55 angle as a marketing tool and has maybe created some ‘over 55’ community rules?
‘Residential community’ is the new name for residential parks, caravan parks and manufactured home estates where people live on a permanent basis.
Under the Residential (Land Lease) Communities Act 2013, residents can apply to NCAT to resolve a wide range of disputes including community rules disputes.
If your scheme is a ‘retirement village’ then some information from the NSW Office of Fair Trading is here:
https://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Retirement_villages.page
If your scheme is a retirement village then not all residents need to be over 55, but generally most residents are aged over 55. The key word is “retired“.
A retired person means a person who has reached the age of 55 years or has retired from full-time employment. The 43 year old in question may have “retired” from full time employment.
The definitions of who qualifies to live in a Retirement Village are here:
https://www.legislation.nsw.gov.au/#/view/act/1999/81/part1/sec5
NCAT can resolve disputes about retirement villages in NSW