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I agree with you in the most part. In most situations I would think that an indoor pool within a strata building would NOT technically be classified as a “public pool”.
If the pool is located on common property then the occupants may use it in accordance with any by-laws conditions. All the lot owners jointly own any swimming pool or spa pool that is on common property.
Members of the public are not entitled to access the common property of your strata scheme unless invited by an occupant. Invitees must comply with all conditions imposed by the by laws and the Act.
Although strata pools are not technically “public pools” they would still need to comply with the various Acts that govern pools e.g. the Swimming Pools Act 1992 for safety issues.
The quote that you provided is from the Public Health Act 2010 . Environmental Health Officers do not regulate public health issues in pools and spas within private residential premises including strata residential buildings. However, an OC has a duty of care to provide a safe and healthy environment for users of the common property pool.
See here for more information on pools in strata:
Breaking a lease earlier than the stated termination date can be complicated. There are responsibilities on the part of both the tenant and the agent that should be complied with.
Yes, the agent may be correct.
Information that may assist you is here:
If you do not get your windows cleaned by the OC then you could try the magnetic window cleaner option. One brand that sells these items is Window Mates.
Or you could look at this clever robot invention – the Winbot:
It is good to see that the City of Sydney has made an attempt to develop some restrictions for new development approvals. However, I have lived too long on this planet not be sceptical of even the best of endeavours! I can see legal loop ‘holes’ in this DA. I hope that those who reside in this development do not think that they have water tight protections.
One of the most obvious ‘holes’ is at (c) – the 3 month residential tenancy agreement. Signed leases are easy to get released from and without any penalty – all it takes is the owner’s consent.
What is to stop an unscrupulous owner requiring all of his tenants to sign the mandatory 3 month lease but permit the tenant to escape from the lease after one week? This is a contractual agreement between the owner and the tenant that the OC is not party to – therefore any excuse can be concocted to explain why the 3 month lease was not sustained and was terminated early.
There is no penalty on an owner who has permitted his tenants to break their 3 month leases. The only requirement is that a 3 month lease was initially signed.
And another ‘hole’ is at (d) – the no advertising of short term rentals …… The unscrupulous owner could advertise a 3 month rental but state that “the lease terms contain no penalties for early termination”. The short term rental has not technically been advertised – but has it been implied? Or is the owner just being magnanimous? A tricky one to decide!
This DA is a good initial attempt but the issue still needs some work to make it more ‘water tight’ and less ‘holey’.
As attractive as your option sounds Jimmy T (i.e. that a strata scheme can ban short term letting based on it not being deemed ‘residential’) I am not sure that it would work in reality.
The term ‘residential’ is a zoning term that merely distinguishes it from the other zones which are mainly either: ‘industrial’, ‘commercial’, or ‘agricultural’.
The term ‘residential’ generally does not have the narrow and specific meaning that would be required to ban short term rentals from an area that has been zoned as ‘residential’, and particularly in a zone that already permits other residential types such as: low density residential, medium density residential, high density residential, and large lot residential.
Unless it could be proven by a strata scheme that an owner within their scheme has breached the planning and zoning regulations and has changed the use of their apartment from ‘residential’ to ‘commercial’ then a short term let would still be ‘residential’.
This breach may require a high degree of proof … and, if challenged by an owner, the strata scheme may unfortunately have a difficult time proving this change of use.
I have a vague recollection of a change of use being recognised in Victoria when a large number of apartments within a strata scheme was taken over by a large international accommodation provider that included: an onsite check in desk; an onsite manager; and which employed a commercial cleaning company to service the apartments, and luggage porters etc. This scenario was deemed to be more akin to ‘commercial’ than ‘residential’.
However, this example is unlikely to produce the same outcome from a situation where an isolated few apartments within a ‘residential’ building are let on a short term basis, particularly if they don’t share the same set of characteristics as the Victorian example.
Jimmy T – I am a bit confused about the terms (1) ‘co-operative housing’ and (2) ‘co housing’ (communal housing). Both appear to be quite different. Are you able to provide a definition of both? Which type are you advocating for?
Unlike in a residential building holding Strata Insurance is mandatory under each state’s relevant strata legislation. Perhaps your strata insurance provider was concerned that your scheme was not complying with the legislation?
In general terms, an Owners Corporation is responsible for the following main insurances :
- The main building and any outbuildings
- Public liability
- Workers Compensation
- Voluntary workers cover
More info and links to the legislation is here: https://www.strataman.com.au/insure.html
Dudley – Or if your OC did not want to get into a ‘fight’ your OC could agree to pay the invoice, if it appears to be reasonable, but … before you do so …… you could make the OC payment of the invoice contingent on the Rental Agent guaranteeing the repair work and get them to sign an indemnity that should any further work need to be carried out as a result of the repair that the Rental Agent must cover any additional costs. And of course you would need to point out their error.
Further to JT’s comment ….. If the Tenant is given a rent reduction by the Owner for common property balcony repairs then the Owner should be able to claim this deduction from the OC’s insurance.
The owners corporation is responsible to repair the damage to the building, and pay compensation, no matter that it is not at fault.
“In the NSW Court of Appeal decision of The Owners SP 35042 v Seiwa Australia Pty Ltd [2007], the owners corporation was ordered to pay the landlord $150,000 as compensation for loss of rent for 30 months until the repairs were completed. The premises were a top floor penthouse in North Sydney with a roof top terrace. It was vacant because it was not habitable until repairs to the membrane and the steel railings around the roof top terrace were completed.” (Extract from https://www.propertyinvestmentlawyer.com.au/renting_part6_Strata%20Renting.htm)
Dudley – Can you provide some additional information please?
Are the townhouses separate buildings with separate roofs, or, are the townhouses attached to each other with a common roof?
If separate can you check the Strata Plan to determine the boundary between the Lot and the Common Property. The reason why I am asking is that sometimes roofs are common property and sometimes they are not …. is there a notation on the Strata Plan about roofs?
If the roof is deemed to be common property then the Rental Agent is clearly wrong to arrange the repair. The Rental Agent’s duty to the tenant is to inform the OC about the leak – that is all!
In the alternative case, if the roof is not deemed to be common property and is therefore the responsibility of the Lot owner then the Rental Agent is wrong to send the invoice to the OC. The invoice should be sent to the Owner.
Playing “devils advocate” here I would be wary of this statement: ” “the rent abates if the premises are … partly uninhabitable”. The external balcony would not strictly be deemed to be a “habitable” space in the same way that a bedroom or a kitchen or a bathroom would be.
Option 3 would be my preferred option. It would be unreasonable to have half of the owners receiving a ‘free’ air conditioner whilst the remainder not only pay for their own air conditioner but also the other owner’s air conditioners. Different owners run their air conditioners more or less frequently than others and this would impact on the maintenance required and the longevity of the unit.
Can you provide additional information please ….
What do your by-laws say about air conditioners? How and when was the initial approval given to the owners to install their air conditioners on common property? What reason has the SM given for his opinion that the individually owned air conditioners are the responsibility of the OC to maintain? At whose instigation was the clarification sought from the SM in 2010 – was it from a committee member who would have gained a ‘free air -conditioner’?
The statement from the SC meeting of 2010 is merely an opinion. The OC maintenance and repair (and including replacement) of individual owner’s air conditioners on common property is not something that can be decided by the SC.
This all depends on the timing …. and your negotiation skills. See here for a QLD opinion that may apply to Victoria:
https://mybodycorpreport.com.au/pays-special-levies-buyer-seller/
I don’t think that an external fire egress path would necessarily show on a Building Plan …. just as the common property plan does not show fire egress routes through the building. These are generally determined by a Fire Engineer or a Building Surveyor and may be recorded somewhere differently than the Building Plan.
The SC must have a Fire Egress plan or it would not be mentioned in your By-law. Can you ask your SC for a copy of the plan? From my experience in QLD the fire egress routes should be displayed in a prominent place within your building, along with the meeting place for all persons after they have evacuated the building.
I would imagine that any branches on a path would need to be trimmed to the height of approx 2.5 m and to an appropriate width to allow people to escape quickly. The following linked legislation hopefully should provide you some answers.
Strataman says this: “The NSW Environmental Planning & Assessment Regulation 2000 Part 9: Fire Safety… requires that “the owner of a building, to which an essential fire safety measure is applicable, is required to maintain each essential fire safety measure in the building”. Failure to comply with this legislation can lead to significant fines and possibly serious legal ramifications for those responsible.
An appropriately qualified person, such as a Fire Engineer or Building Surveyor, must inspect the fire safety measures and provide an initial Fire Safety Certificate (also commonly called a Fire Safety Installation Certificate) to the Owners Corporation for all new buildings or recently ‘altered’ ones.
This certificate must then be provided to the local council and the Fire Brigade and a copy displayed in a prominent location within the strata building. Then, each year, the whole inspection process happens again and any ‘defects’ are reported to the Owners Corporation so they can be corrected. Once all the issues with compliance are fixed, the Annual Fire Safety Statement is then sent to the local council and the Fire Brigade with a copy displayed in a prominent location within the strata building.”
From my understanding of your situation …. I hope this helps answer your questions:
(1) No. The SC does not have a right to enter your Lot or your EU unless one of the following [s122] provisions apply. Your consent is required if the entry is not an emergency, or unless there is an Order from the Tribunal.
Power of owners corporation to enter property in order to carry out work
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.
(2) No. Unless access is required by the Fire Authority or EPA etc. Proof by way of Notice should be supplied by the SC if access is required. You appear to have a Fire Egress Path on part of your EU. Has your strata scheme had a recent Fire Safety Audit – is that why the SC has become concerned about the egress path? Was a ‘defect’ found at your property that required rectification? A Fire Safety Inspection Audit may require that you trim your vegetation to allow a safe path for egress from the building to remedy any defects but your SC would probably be notified of this via the Inspection, then the SC would notify you.
Access for fire safety inspections
123 Access for fire safety inspections
(1) A person authorised to carry out an inspection under the Environmental Planning and Assessment Act 1979 of a building or premises that is part of a strata scheme for purposes relating to fire safety may give a written notice to the owners corporation requiring the owners corporation to ensure that access is provided, within a period or at a time specified in the notice, to the common property of the strata scheme and, if so specified, some or all of the lots in the strata scheme.
(2) An owners corporation must comply with a requirement of a notice given to the owners corporation under this section.
Maximum penalty: 20 penalty units.
(3) It is a defence to a prosecution for an offence against this section consisting of a failure to ensure that access is provided to a lot in a strata scheme if the owners corporation establishes that the owner or occupier of the lot refused to allow the access or could not be contacted by the owners corporation.
(3) I would not think that an individual SC member can be banned from entering a property. Should you feel intimidated by a particular person on the SC then you could request that when the SC enter your property on legitimate grounds and with the required notice under [s122] or [s123] that at least 2 members of the SC be present at all times.