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In most strata schemes, the lot owner owns the inside of the unit but not the main structure of the building.
The balcony may be on the lot Title but if it a structural part of the building then its structure will be common property. Balconies in multi storey buildings are part of the slab between the Floors therefore would be structural.
The basic rule is that everything inside the airspace of the unit, including all internal walls, fixtures, carpet and paint on the walls is usually the lot and therefore the responsibility of the lot owner.
The following is a checklist for common property (from NSW Office of Fair Trading):
- floor includes a ramp or stairway
- boundary wall includes any door, window or other structure within the wall and their working parts
- ceramic tiles originally attached to a common property surface (eg. the floor or boundary wall)
- pipes in the common property or servicing more than one lot
- electrical wiring in the common property or servicing more than one lot
- parquet and floor boards originally installed
- vermiculite ceilings, plaster ceilings and cornices
- magnesite finish on the floor
- balcony doors are usually common property if the strata plan was registered after 1 July 1974
- the slab dividing two storeys of the same lot or one storey from an open space roof area or garden areas of a lot (eg. a townhouse or villa), is usually common property if the strata plan was registered after 1 July 1974, unless the registered strata plan says it is not.
For more information on common property in strata plans that were registered before 1 July 1974, please visit the Land and Property Information website at: http://www.lpi.nsw.gov.au
I would investigate whether the Owner of the balcony contributed in any way to the leak in the balcony. If the lot Owner has interfered with the membrane in some way such as by piercing it then the Lot Owner would be Contributory Negligent and should pay a proportion of the repair.
See here for NSW Office of Fair Trading opinion on balcony ownership:
Common property within a scheme is owned by all lot owners as tenants in common.Therefore, all lot owners and occupiers are entitled to reasonable use and enjoyment of common property.
If your scheme is using the Model By-Laws they will state:
7 Children playing on common property in building
An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other area of possible danger or hazard to children.
Note : This by-law was previously by-law 18 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 19 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986 .
An owner or occupier must make sure any child under their control does not play on common property areas inside the building. Children must be supervised by an adult when on common property laundries, car parking areas or other areas dangerous to children.
Please note that this does not stop children from playing unsupervised on common property areas outside the building that are not dangerous (eg. a lawn).
Generally speaking the public Liability policy for the strata scheme protects the strata scheme when they are found to be legally liable for personal injury including the legal defence in respect of any allegations of negligence. Check with the insurer of your scheme however as some may be different.
See here for advice from the NSW Office of Fair Trade : https://www.homehunters.com.au/completehome/images/Buying-Into-a-Strata-Scheme.pdf
I agree with scotlandx. I would also add that if the person in arrears settles his account at the Meeting then he will be able to vote on ALL of his Entitlements.
But beware of Cheques, B Pay etc ….. they may be problematic. See here: https://www.lookupstrata.com.au/nsw-owner-unfinancial-levies/
Assuming that all of the correct processes have been followed by the Strata Scheme I believe that you cannot avoid paying the additional Special Levy.
Have you considered explaining your financial situation and difficulties to the Strata Manager?
Perhaps you could come to some sort of financial arrangement about the payment of this Special Levy. This type of special arrangement is not uncommon.
These special arrangements will need to be approved by the Committee. It would not be reasonable for the Committee to refuse to enter into such an agreement.
Committees that I have been involved in have entered into such individual agreements to allow Owners more time to pay.
However, if you believe that correct processes have not been followed then you have the option to seek assistance from NSW Fair Trading.
Sorry. I can’t agree that a strata scheme could reasonably place a total and unconditional ban on children from using the grassed common property based on the following reasons:
- It would be unreasonable to discriminate against one category of occupant from using the common property whilst allowing another category.
- Model by-laws from the SSMA state:
An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other area of possible danger or hazard to children.
- The by-law could be strengthened by placing an age minimum such as 12 years on unsupervised activities, or, if the common property is adjacent to glass windows placing a ban on activities involving balls such as soccer, cricket, rugby, AFL, baseballs etc. Sponge ball should be allowed.
- Noise, nuisance, damage to common property, behaviour of occupants and invitees by-laws should already exist within your scheme.
- Banning all recreational activities is not reasonable. Reading and knitting are recreational activities too.
- Other than for retirement village strata schemes, by-laws are not allowed to restrict or prevent children living in a strata scheme.
The issue in Matt’s scheme appears to be enforcement of the by-laws that already exist. Schemes can have the strictest by-laws reasonably possible but unless they are enforced they are worthless.
The owners corporation may also need to consider erecting a fence between the car park and the car park, or erecting a cautionary sign at the entrance to car park indicating that children may be present.
Am not sure which State you are in …..
The Admin Fund generally supports the day to day running of the property and day to day maintenance of common property, whereas the Sinking Fund supports major works and renovations.
The Special Levy would have been raised because your scheme did not have enough money in the Sinking Fund to cover the cost of the renovation it. Once raised it should have been put in the Sinking Fund rather than the Admin Fund.
In NSW in special circumstances money from the Admin Fund can be used to help support the Sinking Fund but the money should be paid back within 3 months. However, this transfer of money from the Admin Fund to the Sinking Fund is forbidden in QLD.
Generally the Admin Fund should not contain more than 10% over the expected annual running costs of the Admin Fund. The Sinking Fund is the correct fund for accumulating excess money ready for use for future capital expenses.
Strata finance and loans can also be considered if Special Levies are too burdensome.
See here for NSW: https://www.strataplus.com.au/resource/sinking_administration_fund/
I’m not sure that you can do much about it. See here:
And from the CHOICE site is an extract ….
Special Counsel Matthew Craven of the law firm Corrs Chambers Westgarth, who has researched and written about drone privacy issues:
“I am not aware of any case in Australia where a private individual has successfully taken action against a drone pilot for breaching their privacy, whether under the Privacy Act or under any other law,”
Which State do you live in? The whole scenario sounds dreadful. The matter is obviously urgent and needs to be dealt with immediately. For a very small fee you may need the help of the wise Adjudicators to sort your problem out.
I would therefore be seeking an Interim Order immediately from NCAT (if you are in NSW) or QCAT (if you are in Qld). Other States have similar Tribunals.
For NSW Interim Order applications see here:
For Fees for lodgement of application for Interim Order see here:
https://www.ncat.nsw.gov.au/Pages/apply_to_ncat/fees_and_charges/fees_and_charges.aspx
Questions may be raised about whether proper process was followed and whether the Committee committed any breaches: in the obtaining of only one quote instead of two quotes (this applies in some States but not others); failing to submit a Motion with Alternatives at a General Meeting; Committee spending limits failures etc. Was an option of the Strata scheme borrowing money to conduct this major work ever voted upon? Wiser heads need to determine whether proper procedure was followed!
See Section 76 of the SSM Act for information regarding the proper process if the special levy needs to be raised to meet unexpected additional costs, and how periodic payments of the special levy can be made rather than a one off payment.
STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 76
Owners corporation to set levy for contributions to administrative and sinking funds
76 Owners corporation to set levy for contributions to administrative and sinking funds
(1) The owners corporation must determine the amounts to be levied as a contribution to the administrative fund and the sinking fund to raise the amounts estimated as needing to be credited to those funds.
(2) That determination must be made at the same meeting at which those estimated amounts are determined.
(3) The owners corporation must levy on each person liable for it such a contribution.
(4) If the owners corporation is subsequently faced with other expenses it cannot at once meet from either fund, it must levy on each owner a contribution to the administrative fund, determined at a general meeting of the owners corporation, in order to meet the expenses.
(5) A contribution is, if an owners corporation so determines, payable by such regular periodic instalments as are specified in the determination setting the amount of the contribution.
It can be done but seek a legal opinion. It appears that the new Lots will be created from the existing Common Property. The new Lots will probably be classified as a Subsidiary Scheme of the original scheme.
Some more info here: https://rgdirections.lpi.nsw.gov.au/strata_schemes/requirements_for_a_strata_plan
and https://rgdirections.lpi.nsw.gov.au/strata_schemes/after_scheme_commenced/subdivision_of_common_property_only
Yes, a grant of Exclusive Use can incur a cost after the Exclusive Use has been granted to the recipient, but not easily.
Section 53 of the Strata Schemes Management Act 1996 states:
“53 Can a by-law contain conditions?
A by-law to which this Division applies may confer rights or special privileges subject to such conditions as may be specified in the by-law (for example, a condition requiring the payment of money by the owner or owners of the lot or lots concerned, at specified times or as determined by the owners corporation).”
And yes, a grant of Exclusive Use can be repealed, but not easily. Section 52 deals with this matter.
“How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
Section 52 How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
(1) An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:
(a) with the written consent of the owner or owners of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and
(b) in accordance with a special resolution.
(2) A by-law to which this Division applies may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.
(3) After 2 years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.”
For a legal opinion see also: https://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1374&context=blr
(my emphasis only)
The electricity supplied to, and paid for by the strata scheme should primarily be used for strata scheme purposes, and not for the benefit of an individual lot included in the scheme.
In allowing an owner to use a common property electricity supply that is not as a matter of course provided to all other owners of lots in the scheme, the strata scheme would need to grant a licence to the Lot Owner.
The decision is a restricted issue for the committee and should be presented to a general meeting as a special resolution.
If the Lot Owner has not been granted a licence then the Lot Owner does not have the required authority to connect his refrigerator to the strata scheme electricity supply and is therefore in breach of the Act.
Conditions can be placed on the granting of this licence, including payment of a fee to use the common property electricity.
The relevant legislation is here:
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 112
Owners corporation may grant licence to use common property
112 Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner or occupier of a lot in the strata scheme or another person to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by a special resolution.
(2) A licence may be granted subject to terms and conditions.
Note : Division 3 of Part 7 enables owners corporations to make common property rights by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
(3) Without limiting this section, a licence may be granted under an agreement with the local council for a strata parking area under section 650A of the Local Government Act 1993 .
See here for the Brisbane City Council Fact Sheet relating to Short Term Accommodation:
The language is not prohibitive. You will note phrases such as “is unlikely to be”, and “this would likely be”.
Fines may be up to $2356 but so far BCC has not issued any infringements.
See this comment from the Lynkim case: [22] The legislation does not define or qualify the term ‘residential purposes’ in section 180(3). The section does not say, for example, “if a lot may lawfully be used for a specific type of residential purpose”. I am satisfied that the plain English meaning of ‘residential purposes’ includes any type of residential purpose, including short and long term letting and permanent residency. There is no suggestion that lots in this scheme cannot lawfully be used for residential purposes. It follows then that the attempt to record a by-law to limit the type of residential use of a lot to only long term letting or permanent residency is a restriction of the type of residential use contrary to subsection (3).
And: [24] Adjudicators have consistently held that by-laws which attempt to prevent the short term letting of lots (including where there are local government or building classification concerns regarding short term letting) were invalid.[8]
Hi Madamme
Here is a useful brochure from the NSW Law Society that may benefit you and add to JimmyT’s helpful information:
https://www.lawsociety.com.au/cs/groups/public/documents/internetyounglawyers/027213.pdf
Hi Elives
See this very recent Adjudicator’s Order from Lynkim Lodge [2016] QBCCMCmr 419 (14 September 2016) for the latest thinking on Airbnb in Queensland.
I have copied the Conclusion below.
Please try and read the whole Order. It can be accessed via this link to the Austlii site.
Conclusion
[25] It would be contrary to the Act for the Body Corporate for Lynkim Lodge to record a by-law that prevented owners from leasing their lot for less than three months, regardless of whether the rental was arranged directly or via a traditional property manager or via a rental service such as Airbnb. It follows that Motion 4 at the March 2016 EGM was beyond the power of the Body Corporate to pass and could not lawfully be implemented. I have invalidated that resolution.
[26] The applicant subsequently asked for an order that the Committee not vote on any proposed resolution that would restrict the right of an owner to use any lawful service to acquire tenancies of any duration. I am not clear what the applicant is asking for, but an adjudicator cannot make orders about hypothetical future contraventions of the body corporate legislation.[9]The limits on the power to make by-laws should now be clear and if the Body Corporate sought to impose improper restrictions on letting in future that decision could likewise be challenged.
[27] The concerns of the Body Corporate and other owners regarding the noise and other offending conduct allegedly caused by the applicant and his tenants can be addressed separately. The current CMS for the scheme[10] includes by-laws about noise (By-law 1), parking on common property (By-law 2), and rubbish and garbage disposal (By-laws 7 and 10). By-law 6 requires an occupier to take reasonable steps to ensure that their invitees do not behave in a way likely to interfere with the peaceful enjoyment of others. The Body Corporate, owners and residents can utilise the by-law enforcement processes in the Act if these are not complied with.[11] If the current by-laws do not adequately cover all the areas of current concern, the Body Corporate could consider resolving to amend or add to the by-law to impose additional obligations or restrictions to reduce adverse impacts on other residents. However in doing so the Body Corporate must always act reasonably[12] and its decisions can be challenged if it does not.
[28] The applicant should consider giving more explicit directions to his guests about appropriate conduct during their visit, particularly regarding noise, parking and bins, and ensure that he abides by the by-laws when he is in residence.This might be an opportunity for your Owners to have a look at ALL your by-laws and do a ‘clean up’ of those that are redundant. Many often are. Laws change, attitudes change … pets, and flooring are just two examples.
It should cost the same to do one change as it does many. It may save costs for you down the line.