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Mailbox – For unpaid maintenance levies the relevant sections of the Act are:
NSW SSMA 2015 sections dealing with the Unpaid Levies and Payment Plans
- Section 84: Liability of persons other than owners for contributions
- Section 85: Interest, discounts on contributions and payment plans
- Section 86: Recovery of unpaid contributions and interest
And more info regarding your two issues (By-laws, and unpaid levies) are here at Page 20 and 24:
https://www.fairtrading.nsw.gov.au/pdfs/About_us/Publications/ft045.pdf
See here from Jimmy T: http://www.flatchat.com.au/by-laws-and-breaches-the-options/
The Owner or Tenant can be fined if the Notice to Comply is ignored.
See here for some info regarding the unpaid levies:
https://www.lookupstrata.com.au/nsw-unpaid-levies-new-rules/
I hope this information helps …. From the Office of Fair Trading web site: All strata schemes must review their by-laws by 30 November 2017. NB: It appears that your Scheme has already reviewed your By-laws at your last AGM thereby complying with this requirement.
Owners can adopt a model by-law as their own or make their own by-law.
Owners corporations can choose to adopt these model by-laws or make changes to better suit their circumstances to manage issues in strata like overcrowding, pets, parking, and smoke drift. Schemes are not required to adopt or adapt any of the model by-laws, they are available to assist schemes in reviewing and making by-laws to suit their scheme. Model by-laws cannot be the by-laws for your scheme unless they are first formally adopted by the owners corporation and registered with the Office of the Registrar-General.
Model By-Laws are here:
https://www.legislation.nsw.gov.au/#/view/regulation/2010/492/sch2
LawoftheLand – Any replacement gate or fence must only meet the standard of a “sufficient dividing fence”. The OC can opt to replace these items in as cost effective way as it sees fit. The OC does not need to replace with a more costly or fancier version. Any upgrade to the original would be seen to be an improvement rather than a repair and would require a special resolution.
I am having difficulty understanding your picket gate issue …. why are the gates being replaced – do they require replacement or is a repair an option? Were gates originally installed on all 5 or 6 Lots and if so why have some gates been removed? Any removal of a common property gate would be deemed to be damage to common property and would be the responsibility of the Lot owner to replace.
As for the planter boxes – did the OC pay to remove them and did the OC pass a Motion to allow the Lot owners to remove them. Was it only some planter boxes that were removed, why were only those planter boxes removed and not all planter boxes removed? Were the planter boxes within the fence line or did the planter boxes form part of the fence?
The way I see it is that you have two arguments in your favour: The previous legislation (Section 65A of the Strata Schemes Management Act 1996) https://legislation.nsw.gov.au/inforce/58c71653-c48b-c300-b4c4-ef01a29d7327/1996-138.pdf required certain common property changes to be authorised by the owners corporation, not the executive committee. If the EC authorised this change then it was not following proper procedure. If the planter boxes were removed by the Lot owners without permission from the OC then this could be deemed to be damage to common property and could be the Lot owner’s responsibility to replace.
The second argument in your favour is acquiescence. If the OC needs to pay for the Common Property fence replacement (after a Special Resolution has been passed) then the OC should only put the fence back to its original position. The planter box does not need to be replaced at the OC’s expense. If the planter box was removed several years ago then the only requirement is the installation of a “sufficient dividing fence”. Over a period of time the OC has acquiesced to the change in appearance of the Common Property and accepted the changed appearance with the planter boxes removed and therefore there is no requirement to make it the same as it was before the planter boxes were removed. Acquiescence is subjective. There is obviously no strict enforcement of uniformity of appearance in your Scheme if some Lots have front gates and others do not. Therefore if the Lot owner wants his planter box reinstated then it could be suggested that the Lot owner can install it himself at his own expense.
The AGM from 2 years ago has not properly or legally addressed this issue so nothing should be done about the fence or planter boxes until the proper process has been carried out. Nor did the AGM of 7 years ago properly address the issue.
LawoftheLand – To add to Jimmy T’s comment you might also find this summary to be useful:
https://jamesons.com.au/blog/repairs-fences-dividing-neighbours-strata-scheme/
My guess would be that the OC owned the scanners to begin with and allocated those scanners to the Owners. The scanners then became the responsibility of the Owners to repair and replace.
If the scanners were lost or broken then the Owners bought new ones from the OC. The scanners were passed onto subsequent Owners by the Owners, rather than the OC. The condition of your scanner is something that you should have taken up with the person who sold you your apartment rather than the OC.
It would not be unreasonable for you to ask to purchase a scanner for each responsible person and/or adult within your apartment.
The Office of Fair Trading states that keys, security cards and access passes are the responsibility of the Lot owner to repair and replace. See here:
Bernie – If you win your dispute with your upstairs neighbour by using the VCAT process then VCAT will issue an Order for the upstairs neighbour to repair the balcony. Most people obey Orders.
However, if the upstairs neighbour still refuses to repair the balcony then you can take this matter further through the Supreme Court. Although it sounds burdensome for you to have to do this it will probably be the upstairs owner who will pay your costs.
See here for further details on what happens when an Lot owner does not comply with a VCAT Order:
I personally can’t see how you could obtain any other relief through body corporate insurance etc as this is outside of their jurisdiction.
If I was you I would try the VCAT approach as quickly as possible. The steps to take are outlined in the link above. You could use some ideas from the VCAT case that I linked to in my previous comment to assist in formulating your arguments.
Mitsy – I agree with Jimmy T. It may be worth considering that perhaps the magnesite needed to be removed. Sometimes it can cause problems with the slab:
chesswood – From my reading of the Act and my reading of the process you may not need a surveyor.
If you are confident of your claim that the tree is on the boundary and that the fence has been built around the tree and you provide photographs of the tree and the fence, plans of your Lot, etc then that will possibly be enough for your OC to bring a claim against your neighbour. During the Court deliberation process you will probably get a site visit to confirm the location of the tree and the boundary.
If your OC has done everything that it can to mediate this issue with no satisfactory result then you don’t need to contact your neighbours again. Your OC does not need anything else from your neighbour to bring a claim against your neighbour in the Court – their refusal to deal with you is sufficient to prove that they are being unreasonable and unresponsive. The mediated outcome has clearly not worked so another course of action is needed.
Just go straight to the Dispute Resolution offered by the Land and Environment Court using the information that I have outlined in my previous comment. Include as much information as you can to back up your claim including: photos; original survey plans of the Lot; timelines of actions taken including letters sent etc. Your strata manager may be able to assist. You may need to obtain the original plans from Council if your OC does not have them on record.
If the neighbours are to bear all or some of the cost of the tree removal then the Courts will make an Order to that effect. That should be the end of the matter.
You could contact Solutions In Engineering and ask if they do this type of work. They also develop Sinking Fund Forecasts, and conduct other types of inspections.
If the neighbouring OC is refusing to deal with your OC then perhaps your OC should consider taking independent action. See here for a detailed list of options and processes to go through:
https://www.legalanswers.sl.nsw.gov.au/guides/neighbours/trees.html
NCAT may not be the most appropriate path for you to take. An extract from the above link states: The Trees (Disputes Between Neighbours) Act 2006, called the ‘Trees Act’, provides a much cheaper and simpler method for resolving some of the tree disputes between neighbours than the legal remedy that was previously available.
A Court Order from the Land and Environment Court may be required. The steps to achieving that Order are contained within the above link and also the Land and Environment link here:
Bernie – In Victoria the Owner of the Lot with the balcony will generally be responsible for the repair of the membrane. See here: https://www.propertyprofessionals.net.au/wp-content/uploads/LMS-Legal-Tiles-and-Membranes-A.pdf
Being that the membrane repair is not a body corporate repair then I would suggest that it is the Lot owner of the affected Lot who would take the matter to VCAT. See here for a recent case where the affected Lot owner took the matter to VCAT against the unresponsive Lot owner: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2016/2059.html?stem=0&synonyms=0&query=balcony%20replacement%20and%20owners%20corporation
The OC can always provide an input into the argument by outling the procedure that they have undertaken to resolve the dispute.
It is a good idea for the OC to obtain a compliance certificate for the window locks and their installation for each and every Lot for insurance purposes. These should be kept on Record. See here for information from lookupstrata:
https://www.lookupstrata.com.au/guide-window-locks-legislation-nsw/
In my opinion you don’t need a by-law as the power to enter a Lot to install a window lock is provided in [s122(1)(a)] of the SSMA 2015.
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.
My perspective is that the EC has a strict statutory duty to maintain the common property and should undertake these repairs as quickly as possible to avoid further damage and a possible greater expense.
Undertaking the repair is the most important thing. Any dispute between the EC and a Lot owner about culpability or contributory negligence should happen after the repair and not before the repair. Both the repair issue and the culpability issue are two separate issues. Based on your comments, in your elderly mother’s neighbour’s situation the EC would be unlikely to succeed in any such claim.
If I was in the position of your mother’s neighbour then I would be writing to the EC and reminding them of their duty to repair and maintain the common property in accordance with both the Act and the Tribunal Ruling, and reminding them that any attempt to claw back the costs from any Lot owner should occur after the repairs have been made.
The EC, on its own, cannot appeal the Tribunal decision. Any appeal must come from a decision of the OC at a general meeting. If the other owners are “sick of the matter” then they should not support the Appeal and should vote against any Motion that the EC proposes regarding continuing with an Appeal on this issue.
In response to your question about damages, a recent Supreme Court case (The Owners – Strata Plan No. 50276 v Thoo) appears to have removed the lot owner’s private right to damages for breaches of an owners corporation’s statutory duty.