Forum Replies Created
-
Replies
-
Some tiles in common areas are horrendous to keep clean. I know – I have been an owner in a scheme where we had this problem.
Why don’t you do a bit of foot slogging to other public buildings in your area to see what types of flooring that they use? Banks, public libraries etc. All should have the same liability problems for slips and trips. Also go to a tile shop and do your own investigations.
OHS requires that employers and those who have control (or part thereof) of parts of buildings to show due diligence in ensuring that the risk of injury due to slips, trips and falls are reduced to as low as reasonably practicable (ALARP).
I have read that the minimum rating for anti slip tiles is R11. When you buy your tiles I believe that you should try and obtain a compliance certificate that states the slip rating. That way you will have proof of the rating if anyone has a trip or slip on your floor in the future.
A bit of research has turned up the following. It refers to commecial buildings – which strata schemes may not be properly categorised as being – but best to err on the side of caution when negligence litigation is involved:
Building Code of Australia (BCA) Slip Resistance Requirements
The Building Code of Australia (BCA) include safety performance requirements for safe design which requires most commercial buildings to provide slip resistive surfaces for safe movement, specifically emergency access and egress. The slip resistance requirements of Clause D2.10, D2.13 & D2.14 of the BCA state that “non-slip” and “non-skid” surfaces must be installed for pedestrian ramps, stair treads and landings. Further, parts of buildings may need to comply with disability access requirements.
Slip ratings from CompleteTiles blog site:
- Anti-slip R10 – Anti-slip R10 rated tiles have a rougher surface than a standard matt tile (they are still matt in finish) and are used where slip is considered an issue. This is governed by Australian Standards in commercial areas. The other areas that they are often used are sometimes just good sense (e.g. In a bathroom/shower where older family members may be more prone to slips and falls). It is important to note that the more surface texture, the more grip (generally) and therefore the harder the tile surface will be to clean, this is a known factor in commercial areas and they factor this in and utilise industrial technology to assist. In the domestic environment it may mean manual scrubbing of the floor to ensure cleanliness.
- -Anti slip R11 – Anti-slip R11 rated floor tiles are the minimum mandated around domestic pools as well as various commercial flooring applications. This is also considered good practice for any outdoor tiled areas around your home to improve safety. This level of surface texture will be quite difficult to clean; often the easiest way at home is with a water pressure cleaning machine. In this category there are often many textures available and this will enhance the selection process.
- Anti-slip R12 – Anti-slip R12 and above rated tiles are for hazardous areas, often specified by architects in conjunction with Australian Standards. These tiles are also often used as features due to their coarse surface providing a large contrast (this could be in a floor or wall)
jpeake600- The owners corporation has a strict duty to repair and maintain common property.
Do you have a functioning Committee? Does your small scheme hold Meetings?
Have you obtained approval in the correct manner from the other owners (or at least one other owner if you have 3 owners) for the undertaking of the repair and maintenance?
Do you have the correct authority from the Owner’s Corporation to undertake these actions?
Does your scheme have sufficient funds in the Sinking Fund to carry out this repair and maintenance?
If approval has been obtained correctly then can you please answer the following:
Is the apartment in question occupied at the moment or is it vacant?
If it is occupied then the next questions are: Is it owner occupied? or is it tenanted? If it is tenanted do you have a record of the Agent’s contact details?
If it is occupied then you can always contact the occupant via knocking on the door, emailing the Agent etc. Have you tried this?
If is is not occupied then write a letter to the owner at their last known address to provide Notice of the maintenance, including the dates that the access is required to clean the gutters and undertake the pebblecrete repairs. Ask the owner to respond to you by a given date if and when they receive the Notice.
If no response is received by the given date then you will have done all that you can do under the circumstances, and you should be able to undertake the maintenance and repairs.
These steps may take a while …. but it is worth doing everything correctly or you can find yourself in a whole heap of trouble.
Good luck. Let us know how it all goes.
Chatterbox – Something that is worth having in the back of your mind is that although you may be in a ‘minority’ it is unlawful for the ‘majority’ to wield their power in such a way that is fraudulent, or is actually oppressive, or is motivated by personal gain, or by acting in bad faith. The legal term is “fraud on the minority” or “fraud on a power”.
The New South Wales Court of Appeal has recognised this doctrine of “fraud on a power” as being of general application and, specifically, as applicable to bodies corporate under the Strata Titles Act of New South Wales.
Case law in NSW where “fraud on the minority” or “fraud on a power” has been used in relation to strata is here:
and Houghton & Anor v Immer (No. 155) Pty Ltd (1997) 44 NSWLR 46,
with a further clarification in Part 3 of this document:
The penthouse owner can call for a Poll vote at a General Meeting whenever they want to affect the vote in their favour.
SSMA 2015 Schedule 1 Section 14(3) and (4) states:
(3) Value of votes to apply for poll If a poll is demanded by a person present and entitled to vote on a motion or for the election of officers of the owners corporation or members of the strata committee at the meeting, the motion is to be decided according to the value of the votes cast for and against the motion and the value of a vote cast by a person entitled to vote in respect of a lot is equal to the unit entitlement of that lot. However, the value of the vote of an original owner is to be calculated in the same way as for a special resolution.
Note : Section 5 sets out the manner in which a special resolution is determined.
(4) Polls A poll may be demanded immediately before or after a vote decided by a majority in number has been taken. The demand for a poll may be withdrawn by the person who made it.
Perhaps you should inform your strata committee of both the drip and the mould. They should follow up with the owner. Maybe the unit needs a service, or needs replacing, or has dirty filters etc.
How many apartments are in your building now? Is it 13?
Have you seen a copy of the document that states that the owner of the combined apartment has 3 votes? If this was true it would be highly unusual. Maybe he is confused and has it wrong?
Voting at OC Meetings is found in SSMA Schedule 1 Section 14.
In summary: There is generally one vote per Lot (i.e. one vote per apartment). The owner who has combined three Lots into one Lot will usually only have one vote. This is what is called a simple majority vote.
However, there is another type of vote. This vote is called a Poll vote. The Poll vote is based on unit entitlements. A Poll vote can be requested before any vote is taken at a general meeting. The owner of the combined Lot will have a greater voting power based on their unit entitlement. The unit entitlement is outlined in the strata plan.
From Strataman is this explanation of a Poll vote: “Each vote ‘for’ and each vote ‘against’ is then counted, using the calculated values, and the voting ‘group’ having the greatest value wins”.
NB:The greater the entitlement the larger the strata fees.
You say that you have the same vote as an owner of a 2 BRM apartment….. Are your strata fees for your 3 BRM apartment the same as the 2 BRM apartment? If they are not the same and your fees are higher then you have a greater unit entitlement and therefore a greater voting power than a 2 BRM apartment when a Poll vote is called for. However, when a Poll vote is not requested you will both have one vote each.
The Poll voting power of the owner of the combined apartment plus his 5 friendly owners will depend on the total of their combined unit entitlements. Whether this is a majority can be ascertained in a simple mathematical exercise by adding together the unit entitlements from the strata plan for these 6 apartments.
Without a Poll vote the owner of the combined apartments and his 5 friends will usually total 6 votes.
Tricky to explain …. I hope I haven’t confused you.
Not so factually different to be rejected as a grounds for an appeal against an OC Notice to Comply. Both Orders revealed that Body Corporate knowledge of the breach and their subsequent delays in implementing Breach Notices were grounds for Acquiescence.
Granted it is yet to be tested in a NSW Tribunal perhaps but a lesson for OCs that By-laws should be enforced in a timely manner. I wouldn’t want to take the risk of this principle not being applied in the future in NSW.
It may not be the sole factor that a Tribunal may consider when making an Order but it may be part of it.
Jimmy T and scotlandx – See below for two Tribunal Orders from QLD that refer to the principle of Acquiescence. In these instances Acquiescence on the part of the body corporate was in relation to failure of the body corporate to issue a By-law Breach Notice within a timely manner for animal by-laws, and appearance of a lot. This principle may apply across jurisdictions:
and
And from
https://hyneslegal.com.au/news/the-golden-rules-of-by-law-enforcement-nar-426
Acquiescence. Such a beautiful word. But not when it comes to by-law enforcement.
Enforcing by-laws is not an optional activity. By-laws must be enforced, and the responsibility for their enforcement lies with the committee.
I can’t understand why the Property Manager (PM) is buying the bulk gas or how the PM became involved. How was this authorised? Did this occur as part of some cozy deal with the Developer and the PM from the inception of the scheme?
How long has this been going on? Do you have access to a copy of the PM Contract with the OC – if this deal was part of the original developer’s deal with the PM then what does it actually say in regard to this issue?
How long does the PM Contract have to go before it expires? If it expires in the very near future then you could encourage the OC to remove this element from any future PM Contracts and have the OC take over the responsibility of the bulk gas tank. This would cut out the profit making middle man (i.e. the PM) and make it cheaper for everyone. If you are being overcharged then it can be assumed that everyone else is being overcharged. Are other people concerned about possibly being overcharged?
Is the PM paying their costs for operating this business within your OC? I would imagine that a bulk gas tank would impact on the insurance of the scheme. Who is paying for any additional insurance? Who pays for the repairs of the gas lines to the individual lots? Is the PM operating his business with permission from the OC via a Common Property Rights By-law, and if so what are the conditions? NB: The Tribunal can make an Order revoking a By-law (SSMA 2015 Section 148). Is the PM paying the OC to rent out the site on which the gas tank is situated?
I believe that your assessment about the AER guidelines is correct. I believe that the PM and the OC know it too and that is why they are being obstructionists.
From my experience with owning a lot within a scheme in which there was a PM who rented out 75% of the lots to holiday makers these PMs wield tremendous power over the lot owners under their control. The PM usually controls the EC and the OC. Each lot owner who lets their apartments through the PM lives in fear of retributions from the PM – the fear of losing holiday revenue if the PM accommodates holiday makers in other apartment where the owners are more compliant.
If I were you I would take this matter to NCAT. Your issue is complicated and contains references to other statutory bodies and other legislation which may be beyond our capacity to assist you with.
The EC cannot dictate which legal firm draws up your Common Property Rights By-law (SSMA 2015 Section 142) or whom you seek advice from. It is beyond the power of the OC to do so.
Also, your by-law should not need to include any reference to any other lot owner being precluded from withdrawing from this current arrangement. Your By-law is a personal By-law for your specified lot only.
Try and get yourself on the EC so you know what is going on. You can nominate yourself.
To add to Jimmy T’s comment …. if things ever became ‘nasty’ (which I hope that they won’t do) then your friend can always claim that the EC, in failing to act to serve a Notice to Comply for a period of 7 to 8 years, has Acquiesced to the owner’s air conditioner.
It is difficult to believe that over a period of 7 to 8 years that someone from the EC or OC did not know that your friend had installed an air conditioner on the exterior wall.
Acquiescence refers to allowing too much time to pass since knowledge of an event which may have allowed legal recourse against another, implying that the person has waived their rights to that legal recourse. Acquiescence by the owner’s corporation for a number of years can amount to a deemed authorisation.
Catch22 – The exterior wall on a balcony is generally a common property structure. The by-law usually goes something like this: An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the prior written approval of the owners corporation.
A couple of questions before we can try and answer your question:
Is there a By-law that deals with the issue of air conditioners and what approvals must be obtained from the owner’s corporation before installing an air conditioner?
Is there a By-law that deals with the issue of Appearance of a Lot?
Is the balcony located within the boundary of the Lot or is it a common property balcony?
Have other owners installed an air conditioner on their balcony or on their balcony wall?
It is quite common for owners to make innocent mistakes if they are unfamiliar with strata schemes. In many cases these mistakes can be remedied by sensible and reasonable owner’s corporations and approvals can be given by the owners corporation after the event has occurred.
deesee2304 – See below for a link to info from a legal firm that may be worth reading. It relates specifically to QLD but may also be pertinent to your situation.
The link states : An important proviso is that the amount charged does not exceed the amount “necessary for reimbursing the body corporate for supplying the services”. The amount recovered can include costs of installation, maintenance and operating costs.
Some questions for you: What record does your strata scheme have of any Agreement(s) that may have been entered into? Who was(were) the Agreement(s) between? Was(were) the Agreement(s) correctly made?
There should have been a long trail of EC Meeting Minutes and OC Motions for you to discover how this deal was set up.
Who owns the LPG tank?
Who has control of the LPG tank – the property manager? or the strata manager? Neither should have this control in my opinion.
Where is the tank located? Who owns the ground upon which the LPG tank sits?
Does the property manager pay a fee to the owner’s corporation for the use of the site?
How long does the Property Manager’s contract have to run?
The LPG tank is probably located on common property and unless there is a separate agreement (e.g. a license) which has the endorsement of the owner’s corporation via a Motion at a General Meeting then it should be the owner’s corporation who owns and/or operates the LPG tank and/or the common property on which it sits.
See also from SSMA 2015 Sections 71 and if you wish to mount an action against the building manager then see 72(3)(f).
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/index.html#s72
The Energy and Water Ombudsman NSW site states: We can investigate billing disputes about customers’ hot water consumption charges where a gas or electricity common hot water system is installed. Customers should contact their provider to try and resolve the problem first.
Annak – Another issue to consider (but one that is not really related to this particular topic per se) is the positioning of the a/c unit on the balcony. A/c units that are positioned too close to a railing (and I have seen many of these) are a climbing hazard for small children.
If you or the Strata scheme are required to move the a/c unit whilst the balcony is being repaired and the a/c unit previously has been located within a distance of 900 mm from a balcony railing then I suggest that you relocate it to a safer position or raise it at least 1 metre off the floor of the balcony and install it on brackets on the wall.
Best practice: Positioning air-conditioners or other climbable objects on a balcony or deck close to a balustrade should be avoided or made non-climbable as these can be used as a foothold for children to climb on. Similar to the pool safety requirements, it is recommended that a non-climbable arc of 900mm be maintained outwards from the top of a balustrade.
deesee2304 – The creation of this By-law will clearly impact on your business and any ‘on sale’ of your business in the future so it is best to get it worded correctly. You will need to seek your own legal advice on the wording of the By-law. Any owner who submits their own By-law for consideration by the Owner’s Corporation organises and pays for any legal advice (if required) themselves. The Flatchat site includes several legal Contacts who would be able to assist you.
Once you and your solicitor have drafted the By-law you will need to submit it to the Secretary of the OC via the Strata manager to be included on the Agenda of the next General Meeting.
Another option to explore …. There are several bulk buying gas operators for strata in NSW. Perhaps you can make inquiries about their pricing and raise this as an alternative to your current provider in a Motion at your next General Meeting.
The powers and functions of an Owners Corporation are conferred on it by statute and are exercised for the ‘benefit of the owners’. You are an owner and have all of the rights with regard to fairness and equity as all other owners.