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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.
Compliance certificates are not required.
Access to inspect the locks should not be denied to the OC. If it is denied then the OC can approach the Tribunal, and the Tribunal can order that access be permitted. A fine may be imposed on the owner.
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.
Sydney is becoming more and more like NYC! Everything has a monetary value, even air. The Sydney ” view tax” model is far more fraught and uncertain than the NYC “air rights ownership” model though.
In NYC there are “air rights”. Air rights generally refer to the empty space above a property. But what happens when a building is only six stories high when it could potentially be 32 based on its zoning? This is referred to as a building’s “unused potential”. A nearby building or development could tap into that potential by buying the “underbuilt” air space and using it to provide both light and views to add value to their own building or development.
https://www.nytimes.com/2013/02/24/realestate/the-great-race-for-manhattan-air-rights.html
Faraway girl – This is all highly unusual! As you have pointed out the levies should not be set the way have been set. This alone is an issue for dispute.
This is definitely a matter for the Office of Fair Trading, and possibly NCAT. Good luck with it. It certainly has been a rough ride for you all so far.
Faraway girl – To obtain some more information from you: Did you enter into an agreement with the Developer when you purchased your Lot as to what your levies were to be? Do you have a copy of it, or can you ask your conveyancing solicitor for a copy of it? How was the figure of $2400 arrived at? Was water mentioned and if so did you sign an agreement as to how the water usage was to be divided?
I think Faraway girl has said that 4 lots are sold with the D holding 10. Usually only one more Lot would need to be sold to make up 1/3 of the aggregate unit entitlements to trigger a “leap” out of the “initial phase”, but that depends on the aggregate unit entitlements that have sold versus those that are remaining. Fingers crossed for a speedy sale … but it is a slow process by the look of things! Having such an unwieldy type of water arrangement is enough to scare potential buyers away.
Faraway girl – Some considerations for you …… Installation of the water meters is only the first step. Then the meters need to be read.
What is your Council’s position on reading individual mains water meters? Some councils will only read the one water meter for the building as a whole, and then they bill the strata scheme directly.
In some situations it is up to the strata scheme to read the individual water meters.
It’s also up to the strata scheme to pay the water bill to Council, raise invoices to the individual lot owners for their usage and percentage of costs and then chase those lot owners for payment.
The way to solve this issue is to approach your council and request that they enter a sub-metering agreement with your strata scheme. Council can then read the individual meters and bill each lot independently.
NB: The link included in my previous comment offers some suggestions on how to write the sub-metering agreement and by-law for your OC.
Your tank water meters would not be under the control of the council and may need to be read by a local plumber. To save costs on reading the tank water meters the tank water readings do not need to occur at the same time as the council reading and could perhaps be less frequent.
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Apologies if this is not possible at your scheme. I didn’t realise that you were a multi level scheme.
Perhaps just the sub meters for the mains water should be installed and not the tank water meters. You may need a plumber to read the sub meters and work out the individual water bills if council are unable/unwilling to do it.
If I was in your situation I do my utmost to have as little to do with the seemingly incompetent developer/owner/manager as possible, and that includes avoiding any common water bills, whether they be mains bills or tank bills. It may be several years before all 14 lots are sold and it would appear that your life will be continually beset with the problems that you have already mentioned.
If it means paying an extra couple of hundred dollars to install another water meter for the tank then that is the option that I would chose. In other words, I would gladly pay for the two separate meters. Make sure that the water meters are easily accessed by the meter readers.
Trying to read and calculate the correct amount that you have to pay from the mains water meter for the common property is not something that I would like to undertake and may not be necessary, particularly once an OC has been established.
“The individual meters for the units are located downstream of the master meter and their consumption is deducted from the master consumption for billing purposes. Any residue (common area usage) is billed to the Owners Corporation.”
The Owners Corp common property bill for common property usage is paid by the OC from the Admin Funds. Unlike water for personal use, the common property water usage should not fluctuate too greatly so should be able to be ‘guesstimated’ and assessed before an AGM and included in the levies. A plumber may be able to assist you set the first common water Admin Fund line item for common water.
I am not sure what region you are in but the Hunter Region have produced a booklet that may assist your scheme in installing separate meters. Perhaps you have seen it? It includes a lot of helpful advice such as best practice for installation, by-laws etc.
ShelleyB – I have read that self management is not suitable for schemes larger than 4 or 5 Lots, but preferably only 2 Lots. Yours has 8 Lots.
Jimmy T has written extensively on the topic of self management. See here for an example: http://www.flatchat.com.au/diy-strata-half-dont-managers/
If your SC is not complying with the following essential elements then your OC should not be self managed.
Here is an extract from https://www.strataman.com.au/diy.html
“So, for DIY management you’ll specifically need to:
- know what existing rules and regulations to follow AND KEEP UP WITH ANY CHANGES
- learn all about insurances, fire safety and WorkHealth&Safety requirements
- learn what other legal and legislative obligations you have
- interpret and apply all new legislative and compliance requirements
- set up and maintain the Records and Accounts required by legislation
- know how to convene and run the mandatory meetings
- produce and process financial statements and budgets
- produce, issue and collect quarterly levies
- know how to deal with tradespeople from a legislative as well as operational standpoint
- put an appropriate preventative maintenance program in place for the scheme
- keep the scheme’s insurances current and correct
- ensure all the scheme’s bills are paid and on time
- manage the scheme’s RISK environments for WorkHealth&Safety and Fire Safety
- handle all owner disputes no matter what the problem
Obviously, having to do all the above will require a fair amount of time and effort (as well as knowledge) and it’s definitely not a simple ‘one or two hours per week‘ job.”
chai – If this matter went to Adjudication the Adjudicator would look to see if other by-laws were in place to restrict what an owner or occupier was permitted to do to change the external appearance of a lot.
You have listed another by-law that relates to the external appearance of a lot therefore this could be construed as indicating that the uniformity of the external appearance of a lot is something that the OC has a particular interest in preserving.
The word “external” is not to be taken in isolation, instead it forms part of the phrase “external appearance of a lot”.
The OC has a duty to enforce the by-laws. If there has been a breach in a by-law then the OC can request that the owner remedy the breach.
You have three options: remedy the breach as requested by the OC; take this matter to a General Meeting and have the OC decide to allow the flooring change; or take this to VCAT.
I personally believe that a user pays system (i.e. individual meters) will end up serving you better in the long run. Individual meters have their advantages, particularly when you use tank water in addition to mains water. There is no incentive to save water if there is only one main meter and the water bills are divided according to unit entitlement (UE). Those tanks will empty quickly if no one is concerned about water saving. Under the UE system a single person in a 3brm apartment ends up paying the same as 7 people living in the same sized unit when clearly the water usage is much less. Also, it is difficult to track down leaks in the water network if there is only one main meter. If a tap is leaking then an owner may think that it is not worth caring about as they are only paying for every fourteenth drop!
As for your current problem with gaining access to a copy of the bulk bill …keep trying via the developer owner. You cannot be expected to pay a bill which you cannot see proof of. Document all your attempts to resolve the issue. And seek assistance from the Office of Fair Trading from someone who is familiar with problems in strata in the initial stages.
When are the individual meters being installed?
Chai – It is immaterial whether the car space can be seen by the public. The owner’s corp is concerned about is whether anyone from the OC can see it, particularly from the common property. If there are no walls or door then anything that you paint on the floor of the car space can be seen by other owners and is therefore a change in appearance and therefore a breach of the by-law. If the car space was to be painted then it would clearly appear different from all other car spaces.
The by-law that deals with the appearance of a lot is basically to maintain the uniformity and sameness of the appearance of the lots, and that would include the car spaces. Some schemes take a strict approach and others are more lenient.
If the floor can be seen from someone standing on the outside of the garage then that could fit within the ‘appearance of a lot’. Is your garage space self contained i.e. does it have a garage door and wall sides or is it totally open to public view?
If I was you I would contact the Office of Fair Trading and ask to speak to someone who is familiar with strata schemes in their initial phase. Yours is a complicated and specialist type of problem rather than a general problem.
I haven’t yet looked into whether car washing in strata is banned or not in NSW. It isn’t banned in QLD. However, you may not be aware that House Rules are not enforceable. Instead of House Rules, the car washing directives should be inserted into the By Laws and approved via a vote at a General Meeting. What do your existing By Laws say about car washing? Perhaps you can propose some more environmentally friendly directives for car washing via a Resolution at your next AGM. Worth a try?
Beware of no repair.
The Owner is responsible for insuring the contents of their home. However, the Owner has clearly notified the OC of the problem with the common property guttering and facia boards. Now that Notice has been provided it is the duty of the OC to make these repairs in a reasonable and timely manner.
The OC has decided not to repair. It is not unreasonable for the Owner to make a claim for any loss, or damage to their contents from the OC rather than from their own insurance company. In fact their insurance company may force them to do so.
In addition, the OC’s insurance company may deny liability if the OC is seen to have knowingly decided not to fulfill their duty to repair common property in a timely manner.
The OC’s decision not to repair may end up being the wrong decision and may cost more money than they first anticipated.