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It is not particularly relevant to the duty of the strata scheme that the deterioration has happened over a considerable period of time. The responsibility of the strata scheme is continuing and just because it has lately come to light, will not necessarily negate the strata scheme’s duty.
The first step is for the strata scheme to repair. The second step is for the strata scheme to try and recover the cost of the repair from the upstairs owner who may have caused the damage.
If someone else damages your property, then like any damages claim, you may take legal action to recover the cost of repairs from that person. This will most likely be under the general law of nuisance.
In the decision in Stolfa v Owners Strata Plan 4366 & ors [2010] NSWSC 1507 (Unreported, Brereton J, 23 December 2010) the Court held that the Hemptons’ obligation to indemnify the owners corporation arose under the general law of nuisance.
See here for more information on how to go about seeking recovery of costs by the strata scheme from an owner:
https://www.netstrata.com.au/liabilities-of-owners-for-damage/
See here for an NCAT decision invalidating a Section 65B licence for car spaces on common property due to the licence being in breach of the SSMA and the EPAA:
In my opinion Yes…(1) unless the Licence was not properly executed and/or (2) one of the Conditions was that the Licence to Use Common Property had an expiration date and that date has passed.
65B Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner of a lot to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by special resolution passed at a general meeting of the owners corporation.
(2) A licence may be granted subject to terms and conditions.
Note : Division 4 of Part 5 of Chapter 2 enables owners corporations to make by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
See here for some info (albeit from Victoria) that may help you: https://www.strataconsultants.com.au/quick-guide-to-leases-and-licences-over-common-property/
Before your scheme does anything the ground floor owner would need to provide evidence to the Owners Corporation that they actually own the area under their Lot into which they wish to extend.
The installation of an air conditioning unit on the Common Property needs careful consideration. Is there no where within the confines of the Lot that the owner can place the external air conditioning unit e.g. on the balcony of a Lot or within their Exculsive Use area?
A warning about air conditioners on rooves (based on first hand experience of a strata scheme in a coastal location):
the brackets can cause the common property roof (if it is a metal roof) to rust which can cause significant problems with who is responsible to repair the damage; and
vibration can be a problem that transfers to whole building if the a/c has not been installed correctly; and
access can be problematic.
I would recommend that the external compressor not be placed on the roof if at all possible.
If the air conditioner is being placed on common property there are a number of steps that must be taken, all of which will require a special resolution at a General Meeting.
Under current legislation there are two resolutions–one to allow the owner to do works (section 65A) and one to adopt a by-law. The by-law is only required if the lot owner is to take the obligation to maintain the affected common property.
The by-law can be of the kind referred to in section 65A(4).
Section 65A(4) states:
A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.
Creating a by-law can be expensive as they are often best drawn up by a solicitor that deals in strata law. Who will pay for this: the owners corp – or the owner who wishes to install the a/c on common property?
The lot owners ultimately bear responsibility for ensuring that air conditioning units operation in accordance with scheme by-laws and statutory provisions.
If you are in NSW you may find the following Booklet useful:
https://www.epa.nsw.gov.au/resources/noise/20130127NGLG.pdf
It contains a section on Strata Schemes (see Clause 1.4.2).
See also:
Protection of the Environment Operations (Noise Control) Regulation 2008
‘domestic air conditioner’ means a split or packaged mechanical system: (a) that is capable of controlling air temperature and distribution and that may also control the humidity and cleanliness of the air, and (b) the nominal cooling capacity of which does not exceed 12 kilowatts, but does not include a device of the kind that is commonly known as an evaporative system, and does not include a device that is designed exclusively for heating.
Section 52 Air conditioners and heat pump water heaters (1) A person must not cause or permit an air conditioner or heat pump water heater to be used on residential premises in such a manner that it emits noise that can be heard within a habitable room in any other residential premises (regardless of whether any door or window to that room is open):
(a) before 8 am or after 10 pm on any Saturday, Sunday or public holiday, or (b) before 7 am or after 10 pm on any other day.
Maximum penalty: 100 penalty units in the case of a corporation, 50 penalty units in the case of an individual.
In QLD the noise generated by the air-conditioner, when measured at a neighbour’s property, must not exceed: 50 decibels between 7:00am and 10:00pm; and 5 decibels above background noise, or 40 decibels (whichever is higher), between 10:00pm and 7:00am. Your scheme may wish to adopt these levels in your Noise by-laws.
There are various ways of reducing noise emitted by air conditioning including the following:
(1) Use of acoustic enclosure;
(2) Use of a fence or barrier;
(3) Use of anti vibration pads, matting, or blankets;
(4) Use of stainless steel brackets.
Rhea – Are you certain that you have been provided with a Draft Agenda …or is it the actual Agenda? If it is the actual Agenda then you are too late to add a Motion. See the link to the Act below for when to submit Motions.
However, if the Notice has already been provided you may be able to add a Motion to amend a Motion. This can be done at the Meeting, or in the period between the Notice and the Meeting. Ask your Strata Manager how to do this.
Your questions:
1. Who can adds a new agenda item (or motion) before the finalised agenda is sent to the owners? Any lot owner can do this. The Motion must be submitted via the Secretary. If you have a Strata Manager then the Strata Manager will usually accept the Motion on behalf of the Secretary. Check with the Strata Manager.
2. Should the secretary call for agenda items to be included before finalising the agenda for AGM? The Secretary does not call for agenda items. A Lot owner can submit a Motion at any time during the year providing notice of the AGM has not yet been issued to the Owners. If a Motion is submitted late then it gets held over until the next General Meeting.
3.Can a committee member ask the secretary to send the draft of agenda allowing the opportunity to include new items on agenda? I guess so. There is no requirement for a Draft Agenda to be given to all Owners. Written notice of the AGM must be given to all Owners at least 7 days before the meeting.
4. Can the Secretary send notice for AGM with finalised Agenda without giving an opportunity to include a motion for consideration? Yes.
Please read Section 276 Schedule 1 particularly Items 6, 7, 8, and 18 (Item 18 deals with Amending a Motion). This Schedule deals with Meeting Procedures of the owners corporation (i.e. General Meetings). Ask your Strata Manager if you do not understand something. That is their job. https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/sch1.html
The whole Act is here:
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/index.html#s20
Make sure you ask the Chairperson whether the Owners are financial before they vote. Those who are unfinancial (i.e. are not up to date with their levy payments) cannot vote.
You may nominate yourself for a Committee position at the meeting before the election is held i.e. before voting has begun.
If you wish to take this matter to NCAT after the AGM then you have only 28 days following the Meeting date to file a submission.
18 Motions require notice
A motion must not be submitted at a general meeting if any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with, unless the motion is a motion to amend a motion of which notice has been so given.
(My opinion only.)
The short answer is yes i.e. your Owners’ Corp can restrict the cat to the Lot, unless you are prepared to amend the by-laws to reflect a different attitude towards cats and common property.
There are lots of ways to allow a cat to experience the outdoors without this including unrestrained access to common property.
Some use a pet stroller.
https://www.worldforpets.com.au/products/46224
I sometimes take my cat outside for a walk using a cat harness. See here: https://www.huffingtonpost.com/2015/06/25/cat-on-leash-harness-train-cats-walking_n_7656754.html
Cat enclosures can be installed on balconies with the approval of the Owners Corp or a portable free standing cat enclosure can be used without Owners Corp approval.
See here for examples of mesh enclosures for a balcony that would need OC approval: https://catmax.com.au/product-category/catmax-enclosure/
https://www.catnets.com.au/products/cat-netting-by-the-metre
See here for examples of freestanding enclosures: https://catmax.com.au/product-category/catmax-caboodles/
https://www.catnets.com.au/products/freestanding-cat-enclosures
To TrulEConcern
You wrote that your solicitor stated that:
The strata map shows a vinculum between the balcony and the lot concerned.
In my opinion that fact is irrelevant to the issue of the balcony floor as common property and its structural defects.
An explanation of the lines on a strata plan:
Thick or dark lines:These lines refer to structural common property walls and are the owners corporation responsibility to repair and maintain. They include tiles, as well as the structure. Painting and wallpaper are not included and are the owners responsibility to repair and maintain.
Fine or thin lines: These are boundary lines marking the boundary of the lot. You will notice that they may be fences or the boundary of your carspace.
Curved lines: This curved line is called a ‘vinculum’ and relates to two parts of a lot that are joined together. You may see these on a plan joining a courtyard or balcony to a lot. That, however, would make the airspace of the balcony part of the lot, not its actual structure.
It should be noted that all floors, ceilings and stairways are common property except if the strata plan states otherwise or a special by-law has been registered.
Below are two documents which may help you to understand the differences between slabs and walls and boundaries and how the common property issue fits into these elements:
https://rgdirections.lpi.nsw.gov.au/strata_schemes/miscellaneous/pre_1974_plans
And
https://rgdirections.lpi.nsw.gov.au/__data/assets/pdf_file/0005/143078/Strata_Plans_Fast_Facts.pdf
In most strata schemes, the lot owner owns the inside of the unit but not the main structure of the building. The balcony slab in my opinion would form part of the main structure of the building. However the structural engineering drawings of your scheme may reveal something different.
The common property also includes the ceramic tiles originally attached to a common property surface (eg. the floor or boundary wall). If the tiles have been changed then they do not form part of the common property.
Were these pergolas part of the original design of the building or were they erected at a later time by the individual Owners of these Lots?
If they were part of the original design of the building, and without seeing your structural engineering plans, it seems to me that the whole of the pergolas (including those parts that above and below 2.5 m in height) would be a common property issue as they appear to be both structural (e.g. concrete slabs, columns, connected to the walls) and a design feature of the building.
Section 62 of the current SSMA indicates that strata schemes have a strict statutory duty to repair and maintain common property.
Sound advice scotlandx. I have been in Strata schemes where we invested surplus monies in Term Deposits. All worked out very well.
If major works are in the pipeline according to the Sinking Fund Forecast then keep this in mind when working out your Term or you may be caught short.
Hi Rhea
Your issues are quite complex. I would personally advise that you seek assistance from a specialist strata lawyer. Not just any lawyer, you need a strata lawyer. You will need to do it quickly i.e. before the AGM. They should be able to advise you what to do at the AGM regarding the 2 Motions.
I would also ask a lawyer about how to apply to NCAT for an Order varying the way the levies are raised should you not achieve the outcome that you desire at the AGM (as Jimmy T said this is Section 87 in the new Act, and Section 149 in the old Act).
To clarify the levy amounts, are you being asked to contribute 1/12th of the total levy i.e. 1/12 of $178,200 = $14,850?
Would that be in addition to the 1/12 of $600,000 you were required to pay in 2015?
In my opinion the Motions dealing with the quotes for the repair on the balcony and the balustrades should be separate from the Motions dealing with the quotes for the replacement of the single glazed windows with double glazed windows. As such I believe that both AGM Motions could be Out of Order due to them being in breach of the SSMA.
The repair of the balcony and balustrades falls within Section 62 of the SSMA (where there is a strict duty to maintain and repair) whereas the replacement of the single glazed windows with double glazed windows falls within Section 65A (which deals with Improvements to common property) because the windows are not being replaced with like for like. In my opinion both should be treated as being separate.
If these 2 Motions are not in breach then they at least should be amended.
As well as Section 62 and Section 65A motions being separated, Item 1 matters should be dealt with in 4 separate Motions rather then being bundled into one Motion. This is particularly so if each item contains a mix of Section 62 and 65A issues.
The Committee are only permitted to vote on matters with a 10% variance of an original quotation. Any variance greater than that should be resolved at a General Meeting. If the Committee have made a mistake and resolved matters with a greater variance than 10% outside a General Meeting then they should be asked to explain why they did so.
Anyone who is entitled to vote at a general meeting can ask for a motion to be put on the agenda for a general meeting. Written notice must be given to the secretary. The secretary must put the motion on the agenda for the next general meeting [Schedule 2, Part 2, Clause 36]. Your building has a Strata Manager so your Motions will need to be addressed to the Secretary via your Strata Manger at the Strata Manager’s address or email address.
Only motions on the agenda for that meeting can be voted on. You have a right to request assistance from your Body Corporate manager to get the wording correct, both on a Motion and on an Amendment to a Motion. NB: An incorrectly worded Motion, or one that may be in contravention of the legislation, runs the risk of being ruled out of order at the meeting by the Chairman and not put to the meeting.
If you have run out of time to put a Motion on the Agenda then you may amend a Motion at the actual meeting itself. Only motions on the agenda may be amended at the meeting. Anyone who is entitled to vote at the meeting may ask the chairperson for a motion to be amended [Schedule 2, Part 2, Clause 35 (3)]. Ask the Strata Manager when and how to do this.
I don’t think we have enough information on this complex issue to fully assist you and that is why I would recommend seeking help from the Strata Manager in wording Motions and Amendments, or seek professional help if you can.
Pay a private investigator to tail the tenant and take some high definition videos to prove that the claim is spurious and/or fraudulent. Photos are not enough. A $1K private investigation fee beats a $20K excess fee.
To TrulEConcern
(1) I am of the opinion that if the balcony is a slab type balcony, even if it is on the Title of apartment 5, it is still the OC’s responsibility to maintain. This is because the structure of the building includes the structural slab of the balcony.
(2) It is obviously a defective balcony if it is leaking. It doesn’t matter particularly, at this stage, why it is leaking the fact is that it must be fixed by the OC. The OC has a duty to do so (Section 62 Strata Schemes Management Act 1996).
(3) Please be aware that the OC can still be responsible for the maintenance and repair of certain common property elements within the boundary of a Lot Owner’s Title. I have listed these (from the Office of Fair Trading web site) in a previous comment
(4) Please read this summary of a very important 2013 decision regarding Section 62 and claim for damages. It may assist you with the claim for rent relief and inconvenience:
https://casenotes.curwoods.com.au/?p=2361
You might also like to read the Seiwa case, an older case, which dealt with a defective balcony in a Strata scheme: https://www.managementrightsnsw.com.au/files/9413/5777/7188/An_Important_Warning_For_Owners_Corporations_in_NSW.pdf
And a comparison between the two cases and their ramifications here: https://www.lookupstrata.com.au/important-new-case-repairs-maintenance/
(5) See also strata and landlord insurance definitions of what makes a property inhabitable or habitable when repairs and maintenance are undertaken by the OC:
Maybe this comment below could provide a cheaper option than $25K and will save the rental inconvenience? Also check whether the building insurance will cover the rental inconvenience.
See this solution from another forum re leaking balconies and lack of a membrane:
Have just found this thread but wanted to confirm that Megasealed definitely do external areas including outdoor balconies as well as bathrooms. They completely seal over the top of the tiles so no water can penetrate. Visit the website for more information.