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Contact the Committee via the Strata Manager and send in photos and a plan of your Lot showing the problem area.
Check also whether there are pipes in the wall or ceiling above the problem area that may be leaking. If a pipe is leaking and the pipes only service your Lot then generally you are responsible.
Check also whether this is an internal condensation problem. If it is then it is your responsibility.
If none of the above is appropriate and if the building is a brick and mortar building then either the positive side or the negative side of the wall may need remedial water proofing. Bricks and mortar are porous.
Don’t let the OC employ a handyman to do this work as this type of problem can be made worse by lack of expertise. You will need a professional waterproofing company to assess and remediate. Negative side waterproofing is possible through high pressure polyurethane injection into the cracks in the wall.
I agree with JT.
Also, if the terrace/balcony is located on a suspended slab be very mindful of any additional weight that may be added if new concrete and/or tiles are being laid over old concrete. You may need to request advice from a structural engineer.
I agree with JT.
In 55+ communities it is often the case that at least one occupant must be 55 or older.
From the Owners Corporation Network website is this extract:
All the correspondence between the executive committee, the strata manager and any service provider or lawyers should be available for viewing. If something is missing the Act allows you to request that it be produced within 10 days. You are entitled to write notes or copy anything and take this copy away.
You should be able to take a photo of any docs with your smart phone.
Note SSMA 2015 [s180 (1)(d)].
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 180
Certain records to be retained for prescribed period(1) An owners corporation must cause the following to be retained for 7 years:
(a) any records, notices and orders required to be kept under this Division or Part 10 of the <i class=”ref”>Strata Schemes Development Act 2015 </i>,
(b) minutes of meetings required to be kept under Schedule 1 or Schedule 2,
(c) its financial statements and accounting records,
(d) copies of correspondence received and sent by the owners corporation,
(e) notices of meetings of the owners corporation and its strata committee,
(f) proxies delivered to the owners corporation,
(g) voting papers relating to motions for resolutions by the owners corporation and to the election of officers or the establishment of a strata renewal committee (under Part 10 of the <i class=”ref”>Strata Schemes Development Act 2015 </i>),
(h) a copy of any signed strata managing agent agreement or building manager agreement entered into by the owners corporation,
(i) records given to the owners corporation by the strata managing agent relating to the exercise of functions by the agent,
(j) any other documents prescribed by the regulations for the purposes of this section.
<small>Maximum penalty: 5 penalty units.</small>
(2) The regulations may prescribe a different period for which any or all of the things referred to in subsection (1) are required to be retained.
Is the contract for ‘facade maintenance’ an ongoing maintenance contract? If it is then you may be being charged an annual maintenance fee even if no maintenance is required.
If that is the case then try and get a copy of the contract and discuss with your committee whether this type of contract is the best one for your situation.
If you have a proactive committee and a good idea of the maintenance schedule then you should be able to identify what needs doing and organise your own individual contractors for specific tasks.
Is the contract for ‘facade maintenance’ an ongoing maintenance contract? If it is then you may be being charged an annual maintenance fee even if no maintenance is required.
If that is the case then try and get a copy of the contract and discuss with your committee whether this type of contract is the best one for your situation.
If you have a proactive committee and a good idea of the maintenance schedule then you should be able to identify what needs doing and organise your own individual contractors for specific tasks.
Are you in NSW?
My opinion – if the agreement is not in writing and if the correct legal process for changing responsibility has not occurred then it won’t stand up in court.
Verbal agreements are very difficult to prove. What evidence is there that an agreement was reached and what evidence is there of the terms of the agreement?
I am assuming from your question that the balconies are on the registered plans as being an OC responsibility. If the balconies are on the registered plan as being an OC responsibility then they remain an OC responsibility.
All three owners would then need to contribute to the repair and maintenance of the one balcony that is in poor condition, with the money coming from the Capital Works Fund and/or a Special Levy based on lot entitlements.
If you don’t know where the boundaries are then you can obtain a copy from NSW Land Registry Services.
My opinion …. If it was a common property tree that caused the problem to the lot owner’s water pipe then the OC should pay for any unusual usage. The OC’s negligence is what has directly caused the damage that has created a large water bill.
If you use the ‘but for’ test the owner could claim that ‘but for’ the tree root from the common property tree his water bill would not be any different from usual.
The OC should pay the difference between what was the lot owner’s normal water usage and what was the unusually high amount caused by the damage from the OC’s tree.
You might want to take a look at the Trees (Disputes Between Neighbours) Act 2006 (Trees Act).
Strataman – Are you sure about your interpretation of the Building Code? My interpretation is that the strata building would be a class 2 building.
The class 7 building would be a building that only contained carparking.
Can’t cancel empty Reply box.
Thanks for the correction Austman, although being a Queenslander I find it bothersome that a Committee would be apparently authorised to impose such a significant and differential cost burden on its lot owners with no owner’s corporation input by way of a general meeting resolution.
It appears to me that it is very debatable whether the supposed additional day to day maintenance burdens of the Hotel apartment owners would be those that would trigger the necessity for a Special fee being imposed, and whether the Special fees have been considered within the owner’s corporation duty to act in “good faith”.
Consumer Affairs Vic gives the examples of Special fees as being “to urgently repair the building or to cover other costs such as legal action against the owners corporation”. The term “extraordinary works” is also used.
The Grudl case involved an issue of total roof replacement so it fitted within the definition and/or example of being an “urgent repair” or “extraordinary works”. The cost of the roof repair was genuinely verifiable. The Mashane case involved urgent safety repairs to balconies when the lot owner was one of the few owners who did not own a balcony.
This is in stark contrast to Mavcal’s situation where, rather than an “urgent” one off event such as a roof replacement there are instead claims of non urgent, intangible, unverifiable and unsubstantiated ongoing wear and tear costs, management fees, and electrical charges over a number of years.
Would the framers of the Act have intended a broadening of the imposition of Special fees based on such speculative claims?
It will be interesting to see where this goes.From a “Madgwicks Australia” online article “Amendments to the Owners Corporation Act – The Mashane effect?” is this extract regarding the Owners Corporation Amendment Bill 2013.
During the second reading of the Owners Corporation Amendment Bill 2013, Ms Heidi Victoria, the Minister for Consumer Affairs noted that:
*The bill seeks to confirm the intention of the Owners Corporation Act 2006, namely that the annual fees of an owners corporation should be set according to each member’s lot liability, as set out in the plan of subdivision, and to overcome the effect of the Supreme Court case of Mashane Pty Ltd v Owners Corporation RN328577 [2013] VSC 417
*Mashane’s case held that the benefit principle must be applied to levies of annual or special fees that are for repairs, maintenance or other works.
*There is no objection to the benefit principle applying to levies of special fees for extraordinary works.
*However as Mashane’s case sets out, the application of the benefit principle for levies of annual fees will require owners corporations, when setting fees, to identify prospective works, allocate an appropriate proportion of the annual fee to those works, identify who will benefit more by those works and by how much, and issue different fee notice to each member based on those estimates.
*The changes to the act ensure there is no ambiguity about the way the benefit principle should be applied in owners corporations.
In my opinion your Committee are acting unlawfully.
The Committee does not have the authority to authorise a Special Levy. Special levies must be authorised at a General Meeting.
Special levies of up to twice the amount of an Owners Corporation’s current annual fees can be raised by ordinary resolution. Special levies higher than that can be raised by special resolution.OWNERS CORPORATIONS ACT 2006 – SECT 24
Extraordinary fees
(1) An owners corporation may levy special fees and charges designed to cover extraordinary items of expenditure.S. 24(2) substituted by No. 78/2013 s. 4.
(2) Subject to subsection (2A), the fees must be based on lot liability.
S. 24(2A) inserted by No. 78/2013 s. 4.
(2A) Fees for extraordinary items of expenditure relating to repairs, maintenance or other works that are undertaken wholly or substantially for the benefit of some or one, but not all, of the lots affected by the owners corporation must be levied on the basis that the lot owner of the lot that benefits more pays more.
(3) The owners corporation may determine the times for payment of the special fees and charges.
(4) A special resolution is required when exercising a power under subsection (1) if the amount involved is more than twice the total amount of the current annual fees set under section 23.
(5) Subsection (4) does not apply if the fees are levied to pay for or recoup the cost of repairs or maintenance carried out to any part of the property for which the owners corporation is responsible where immediate expenditure is or was necessary to ensure safety or to prevent significant loss or damage to persons or property.
My advice is for you to seek legal advice ASAP and then take this issue to VCAT. If you can encourage other owners to join with you then that would obviously offset the costs.
This issue is far too complicated for you to fight on your own.
Ask for costs to be awarded to cover your legal costs if you win.Do you have the correct spelling for the product that will be used?
Overseas studies seem to support findings that Chlorine Dioxide gas seems to work on the majority of toxic moulds but I am not sure whether that particular gas contains the same elements as ‘silber siber’?????
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1214660/Perhaps you could phone and ask questions of your government health unit: in NSW call 1300 066 055
https://www.health.nsw.gov.au/environment/factsheets/Pages/mould.aspx
Or phone Commonwealth Department of Health Free Call: 1800 638 528 | Phone: +61 2 8577 8800
https://www.nicnas.gov.au/contact-usDefinitely seek legal advice and take this to VCAT. This will be a case that pushes the ‘benefits principle’ further than it has previously gone before. The Grundl case is here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2017/1550.html?context=0;query=grundl
You may be able to seek costs for fee recovery if you are successful.
Check the procedural validity of the imposition of the special levy of the $695,718. If the amount of the proposed special fees is more than double the amount of the owners corporation’s annual fees, it must be approved by a special resolution. A special resolution requires support from at least 75 per cent of all lot owners or lot entitlements.
I am not certain that your OC will be successful if this matter goes to VCAT as I am not convinced that the benefit to those who are Lot owners of Hotel apartments are substantial, nor am I convinced that the non Hotel apartments derive no benefit or only negligible benefit from the maintenance that has been described.
All owners benefit from a well maintained building that is professionally managed as this raises the value of all Lots in the building.
Is your building a stratum subdivision and if so does it have a registered purpose outlining the obligations of the various stratum- see Subdivision Act 1988 (Vic) ss 27B(2), 27C(2)
As you have pointed out there are a LOT of assumptions being made in that Report! There are a lot of statements that have been made that were not proven, but were mere ‘thoughts’. A lot of assumptions that have been made are merely speculative.
What is the occupancy rate of the your Lot and the other Lots in general? The accountant appears to be basing his figures on 100% occupancy – how accurate is that assumption? Are some Hotel lots rented out more frequently than others? Your Hotel Manager should be able to give you these figures.
How and where are the hotel linens laundered – is there a commercial laundry onsite, or are the linens sent off site? Do non Hotel Lots also use the laundry? Is there a restriction or are there any guidelines on how often Lot owners may use the laundry?
Why would the cleaning trolley create more damage than a pram or a bike? Take a photo of it and its wheels. If it has rubber wheels then I don’t see an increased problem.
How often would the common property carpets be cleaned if there were no Hotel guests? Have the carpets in the areas occupied by the Hotel been replaced at a higher frequency than other areas in the building where there are no Hotel guests? If you see damage to carpets in other ares of the building not occupied by the Hotel then take photos of it to prove that general damage occurs throughout the building.
Has painting of the common walls been undertaken at a greater frequency in the areas occupied by the Hotel guests?
Would an onsite caretaker be employed if there was no Hotel, and if so are they paid a flat fee for hours worked? If paid a flat fee why would their fees be any higher if there is a Hotel onsite?
Why would electricity charges be higher when I presume the lights are on in the common areas and the Lots whether there is a short term lease or an owner occupier?
How many resident owners own a car and use the garage compared to the number of Hotel guests that have cars? It is often the case that Hotel guests, particularly international guests, don’t use cars so why would the use of the garage door be any greater for Hotel guests?
Why would insurance be any higher on the common property for a user who is a short term tenant than a user who is an owner occupier? What reasons are given for the higher insurance premiums? If the insurance is 25% higher than usual then perhaps the OC should shop around and get a better deal?Mavcal – You might like to seek the services of a legal firm familiar with this area of law e.g. R. Berman Lawyers, who acted for the Respondent in the recent decision of Owners Corporation PS407621Y v Grundl (Owners Corporations) [2017] VCAT 1550.
https://www.linkedin.com/pulse/i-lot-owner-act-honestly-reasonably-considering-whether-berman/