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Thanks for providing more details. Who manages the money in the “rainy day” fund?
It would appear that, based on the configuration of the Lots, your “rainy day” fund would pay for the repairs to Lot 2.This “fund” should also cover repairs to your Lot 1 – as you are both in the same situation with a collapsed ceiling. Make sure that your ceiling is repaired properly at the same time rather than merely “propping it up”, which is not really a satisfactory repair.
Send all the details to the other owner to keep them informed, keep the records, and at your next informal meeting you can both put a bit more money aside to top up the “fund”.
newlsie – Was there a date on the Order whereby the [s62] repairs were required to be made? Have you contacted your Strata Manager and/or SC to remind them of their obligations? I would also be advising the SC that if this is not rectified ASAP then you will take this matter back to NCAT to enforce the Order.
Below is an extract from the NCAT site.
“If a work order (to provide goods or services) is made in your favour and the order is not complied with within the period specified by the Tribunal, you can apply to NCAT to renew proceedings. Learn more about applying for a renewal of proceedings.”
and
https://www.ncat.nsw.gov.au/Documents/ccd_factsheet_enforcing_orders.pdf
In some situations pecuniary penalties may apply if Orders are not complied with.
I agree Jimmy T. that the scheme’s water bills (annually, quarterly or whatever) will be paid by the Admin Fund because it is a bill(s) for the whole scheme. How to recoup this money is the issue.
The water bills, at this stage of the development would be wildly fluctuating due to the fact that the scheme is only partially sold, with sales ongoing.
There are two ways to recoup the money (1) via an Admin Levy, or (2) by a separate direct contribution after the issuing of a separate bill.
It would be extremely difficult to ascertain how much money needs to be levied at this stage of the development. Levies are usually calculated once a year to cover costs for the upcoming year, and these are presented at a General Meeting at or around the beginning of the scheme’s Financial Year. To base a contribution for water usage on a scheme with 5 occupants at the beginning of the levy period, but have the possibility of this expanding to 14 occupants by the end of the year could throw the Admin Fund into disarray. A water usage amount, at this stage, could only be guessed at.
It would be far more accurate to leave the water bill out of the levy assessment at this early stage and instead have the water bill divided according to the unit entitlement whenever the water bill comes in i.e. a separate bill. The owners should be given a copy of the scheme’s bill to enable them to verify that the amount charged to them is correct. This would be a more efficient and responsive way to ‘top up’ the Admin Fund.
At a later time, when all of the lots are sold, the water bill would be better able to be calculated as it would be more ‘settled’ and predicable, and perhaps then it could be included in the Admin Levy rather than billed separately. This could be decided upon at a general meeting by an ordinary resolution.
NB: I personally have had no experience with being an ‘off the plan’ owner or developer.
JonH – By laws cannot be changed or amended by the SC. The by-laws of the strata scheme may only be changed by the owners corporation if a special resolution is passed at a General Meeting pursuant to section 141 of the Strata Schemes Management Act 2015.
Even if the by-law is passed then it does not become enforceable until it is registered with the Land & Property Management Authority. The OC has 6 months to register the changes.
In my opinion the proposed changes to the by-laws at your scheme are authoritarian, unreasonable, unjust, harsh and oppressive. Each renovation will have its own issues and should be treated on an individual basis, both in the time that it takes to complete, and for the security bond that it may require.
Some of the proposed by-law changes are in breach of the Act.
The proposed changes to disallow more than one renovation at a time is also similarly harsh and unreasonable.
What reason is the SC offering for these proposed changes? Has the strata scheme faced a huge problem in this area that it is hoping to re-dress, or it is a random thought bubble?
As for the SC’s proposed imposition of a $1000 per week cost (“fine”) on an owner for exceeding the 5 month renovation deadline, this is in my opinion, is beyond the authority of the SC or the OC to impose. Only the Tribunal can issue a fine for a breach of a by-law.
From the Office of Fair Trading web site:
The owners corporation may apply to the NSW Civil and Administrative Tribunal (Tribunal) if a notice to comply has been issued and the conduct continues. If the Tribunal is satisfied that there has been a breach of a by-law and the notice was given validly they can issue a penalty of up to $1,100 .
If I was in your situation I would as soon as possible seek assistance through the dispute resolution process offered by the Office of Fair Trading. See here: https://www.fairtrading.nsw.gov.au/sites/ftw/Tenants_and_home_owners/Strata_schemes/Resolving_disputes_in_a_strata_scheme/Strata_and_community_mediation.page
You may need to take further steps after you have gone through the mediation process.
Perhaps you should try and get yourself elected onto the Committee to be the ‘voice of reason’.
JonH – My interpretation of the new “laws” that your SC has decided upon is that they are more in the nature of By-Laws and therefore should be presented as Motions at a General Meeting to be voted upon by the OC.
How are the current Renovation rules dealt with at your scheme? Is the SC changing an existing Renovation and Security Bond By-law, or is it creating a new By-law?
NB: A by-law must not be harsh, unconscionable or oppressive. It could be argued that the OC would be acting unreasonably in seeking both a time limit on a renovation, and a bond without an assessment of the impact of the works.
In my opinion these new SC “laws” are not enforceable as they currently stand.
the body – 2 Lot strata schemes are treated differently under the SSMA 2015 in some regards – they have a few special provisions.
From the Strataman site:
2-lot Strata Schemes
The special provisions for 2-lot schemes are:
- the 2 owners automatically form the Strata Committee removing the requirement for an election.
(See SSMA 2015 – Section 30) – especially Part 3 - If the buildings in the scheme are physically detached from each other, the owners can decide NOT to have a Capital Works Fund provided there are no additional buildings or common property in the scheme. Both owners must decide this by unanimous resolution at a meeting.
(See SSMA 2015 – Section 74) – specifically Part 5 - Building insurance is NOT compulsory where the two buildings in the scheme are physically detached and there are no additional buildings on common property in the scheme. However, both owners must decide to forgo insurance cover by unanimous resolution at a meeting. Each owner may then independently insure their own lot.
(See SSMA 2015 – Section 160) – specifically Part 4 - Transferring money from the admin fund to the capital works fund and vice-versa does NOT seem to apply to 2-lot schemes according to the legislation. I can understand this if there is NO Capital Works Fund to start with but what if there is one? Then again, it doesn’t say you CAN’T do the transfer…hhhmmm
(See SSMA 2015 – Section 76).
Can you provide more information please? Can you describe the design of your 2 Lot scheme i.e. are the two buildings detached from each other? Check your Lot boundary and your building and survey plan – is the garage totally within your Lot boundary? If not, then what do the by-laws say about garages?
Ceilings don’t generally collapse for no reason. Do you have any ideas what caused the collapse – was there a water leak etc? Would any of the occupants of the two Lots have contributed to the ceiling collapse e.g. was material stored in the space above the ceiling, if there is such a space?
Response to Watchman’s comment 14: If there are no children on the premises then the child lock can disengaged and the window opened in a normal manner. However, the locks must be engaged and the opening restricted to the legal limit whenever children are on the premises.
Response to Watchman’s comment 15: You are obliged to grant access to the Owner’s corporation for the installation of the child locks and for all of the necessary safety checks. These checks are for your benefit and for the safety of all other people in your building.
However, checks by real estate agents are a totally separate matter. If you have an issue with the number of checks by your real estate agent then this is a matter you would need to take up with them, or through the Office of Fair Trading mediation process etc.
Check your by-laws but it is likely that the vacant car space can only be used for some type of vehicle storage. It should not be used as a work shop or as a general storage area. This would be a change of use from the original Development Approval.
A work shop in a designated garage space could breach many regulations and laws including: fire safety regulations, appearance of a Lot, health and safety, use of common property electricity, nuisance, noise, damage to common property etc etc.
Jimmy T alluded to it here: https://www.domain.com.au/news/parking-cages-in-strata-buildings-raise-ire-of-other-owners-20160310-gnci4q/
Perhaps you could explore the option of having a work shop offsite, perhaps in a “Men’s Shed”, if there is one in your area.
Faraway girl – I have re-read the advice provided by previous respondents and I believe that you may have become a bit confused about the water bill allocation and when and how it is billed to you.
It is my understanding that the water bills for each owner do not need to form part of the actual Sinking or Admin Levy. They can be billed separately.
Ask the Developer if the water utility bills have been included in the Admin Levy? If they haven’t been included then they can be charged separately.
Each lot has a unit entitlement. The requirement for the separate water bills is that they reflect the unit entitlement. If your entitlement is 7% then you should be charged 7% of the total water bill from the time that you owned your unit. This water bill can be a charged separately from the other levies. You cannot avoid paying the water bill on the basis that it has not been incorporated into your Sinking or Admin Levy.
Ask the Developer for a copy of all of the master water bills from the time that you purchased your Lot, and then total them up. Your portion should be 7% of that total.
If you have not paid your water bill then you may be deemed to unfinancial and may not be able to vote.
The water bill would be the ‘any other amount recoverable from the owner‘ from the following SSMA 2015 definition of an ‘unfinancial owner’. ‘An ‘unfinancial owner’ means an owner of a lot in a strata scheme who has not paid all contributions levied on the owner that are due and payable, and any other amounts recoverable from the owner, in relation to the lot.’
In my opinion you are correct in stating that that the Developer would be deemed to be an ‘unfinancial owner’ if they have not paid their Sinking and Admin levies (and their water bills). Be very careful that you too are not an ‘unfinancial owner’ with an unpaid water bill.
Backstick – In my opinion it would not be unreasonable for your OC to ask that the Owner ‘sign off’ with a written confirmation that their structure has been re-installed satisfactorily by the OC. Once the owner has accepted the re-installed structure as being satisfactorily installed then from that time forward I would have thought that it would be the owner’s responsibility for any leaks and squeaks etc.
Faraway girl – It looks like you have posted the same comment twice.
I gather from your comment that your scheme is yet to hold its first AGM – am I correct?
Can I address the water meter issue first? Being a new building I would have thought that there would be a requirement for a master meter AND individual meters. I do not know where you are located in NSW but it is my understanding that the Sydney Water Catchment area has mandated individual cold water meters for new apartments since 2014. Have you checked the laws with your local water authority?
Regarding the water bills to date – It appears that Jimmy T may already have replied to this issue in a previous comment. See here for validation of Jimmy T’s assessment of the correct way to divide a water bill: https://greenstrata.com.au/topic/understand-water-metering-billing-strata
As for the issue of the Developer and his unpaid levies: An ‘unfinancial owner’ cannot vote at a General Meeting. An ‘unfinancial owner’ means an owner of a lot in a strata scheme who has not paid all contributions levied on the owner that are due and payable, and any other amounts recoverable from the owner, in relation to the lot.
It is my understanding that if you have not paid your water bills then you too may be considered an ‘unfinancial owner’ and not be permitted to vote.
An unfinancial owner can nominate someone for a committee position but cannot vote. To become a ‘financial owner’ the outstanding amount must be paid before the meeting.
If you have permission to keep your cats then you should have no concerns that they will be taken away from you.
If the owner who lives opposite you purchased after you obtained permission to keep the cats then he should have done his due diligence and searched the records before he purchased his property. He would have seen that your Lot contained the cats. At that time he could have chosen not to buy the property that he ended up purchasing. He didn’t.
Alternatively, if the owner who lives opposite you purchased his property before you obtained permission for your cats and is only now interested in your cats and his allergies then he had an option to vote against permission to keep the cats three years ago. If he did then he was in the minority.
Fey Knows – I suggest you read the case to fully understand the facts of the case, the nuances, and the reasoning.
It was Backstick and not me who mentioned the ‘common property is not only exclusive use but also by the by-laws to be maintained by the lot owner’.
The factual scenario of the El Khouri case (those that relate to Backstick’s issue) in a nutshell are: The waterproof membrane on the exclusive use balcony was leaking. All internal and external waterproofing is the responsibility of the Owners Corporation (including the function of any structure) except where a lot owner causes damage to waterproofing. The exclusive use owner had not damaged the waterproofing. The OC had previously given approval to the exclusive use owner to build a structure on the exclusive use area with a by-law giving responsibility to the exclusive use owner to repair and maintain the structure. The structure built on the exclusive balcony needed to be removed so that the OC could gain access to the membrane to enable repairs. The OC was responsible for reinstalling the exclusive use owner structure once the membrane was repaired.
I have extracted a relevant detail regarding the issue that you have raised from my reading of the decision in The Owners Stata Plan No 6534 v El Khouri [2015] NSWCATCD 145 (4 December 2015). In my view the structure must be replaced at the OC’s expense.
“Where work is carried out by or on behalf of an Owners Corporation in fulfilling its obligations under s 62 of the Act there is a collateral obligation to repair any damage caused to the property entered by the Owners Corporation or its contractors.”
NB: [s62] of the SSMA 1996 is the duty of an owners corporation to maintain and repair. This duty is now found in [s106] of the SSMA 2015.
In my opinion you are not in a public place or open to the public when you are within your Lot on your balcony. If you were in your front garden of a suburban Lot rather than your back garden it may be a different issue.
“To sustain a conviction, the prosecution must prove beyond a reasonable doubt that you had the requisite intention to expose yourself, and that it was in or within the view of a public place or school. As this is a summary offence, the matter will be heard and finalised in the Local Court.
Exposure in the context of the Act refers to the revealing of your genitalia in a public place. This can include exhibitionism or public nudity, and there is no requirement for a sexual act to be performed. Examples range from streaking at a public sporting event to flashing genitalia to a partner in a public place. A public place for the purpose of this section is taken to mean a place that is open to or used by the public. It is not necessary for someone to have seen the exposure, but instead the focus is on whether the offender has or should have a reasonable belief that others could see the transgression. This law is based on the belief that obscene exposure goes against accepted community standards.” (my emphasis)
– See more at: https://criminal-lawyer.com.au/obscene-exposure-lawyers-sydney/#sthash.ZEL5wo55.dpuf
- the 2 owners automatically form the Strata Committee removing the requirement for an election.