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Any allegation of additional wear and tear, and electricity usage etc being the responsibility of any particular subset of owner rather than being the responsibility of all of the owners must be proven rather than merely assumed.The ‘benefit principle’ is to be used honestly and reasonably. (See the 2017 ‘Grundl case’ at [16] and [20]. The Grundl case involved an expensive one off repair to a roof which did not form part of the roof of Mr Grundl’s lot.
The maintenance works must be wholly or substantially for the benefit of some but not all of the lots. Note the words ‘wholly’ or ‘substantially’. The corollary must be that the other lots must derive no benefit or negligible benefit only.
The accountant may have found a ‘creative’ way to compartmentalize these charges but this would be open to challenge and is not proof, in itself, that the hotel guests caused the damage or the additional charges.Levies are generally prospectively applied and not retrospectively applied.
Was the Special Levy approved at a General Meeting?Special levies only cover common property. Are the maintenance levies for the common property or are they for the individual Lot?
Do your by-laws allow this?
I live in Qld where it would be unlawful for an owner’s corporation to charge certain owners a different levy amount than another owner.
Are you sure that this is an owner corporation Special Levy?
It may be a separate fee relating to a separate contract only between owners who lease their apartments through the professional on site manager. This levy may not have anything to do with the owner’s corporation.
Can you check and let us know, please?I may be a tech dinosaur but I liked the old format better. I am not really liking the additional ‘white space’, and the font size when a post is being written appears to have become smaller.
Thank you for highlighting this very important issue.
In Qld the balcony is generally on the Title of the Lot. I have seen many instances where owners who have been unhappy with the old tiles on their balcony have merely tiled over the top with new tiles. This would add another enormous load to the balcony.
In Qld it is not a requirement that the body corporate needs to be notified about a renovation such as a change of tile on an owner’s balcony.
Add to that load the load from external airconditioner units, ceramic planters and potted plants, outdoor furniture, and people.
Many balconies are cantilevered with no support on the corners.
Is this a recipe for disaster?
Bennifer – Are you able to copy your scheme’s by-law about external awnings to this thread?
It would be very beneficial for all of us if you were able to do this.
You don’t need to specify the source company if you don’t want to.
Are you from NSW?
These articles may help guide you:
https://www.lookupstrata.com.au/nsw-sun-shades-for-apartment-balconies/
There are generally by laws that deal with appearance of a lot and damage to common property therefore approving an additional by-law about the sun blinds at a general meeting and having it registered would be the best way to deal with this issue.
The by-law will need to make it clear that:
the installation of blinds is deemed to be a minor renovation;
and the strata committee can approve the installation but only after an owner submits a request that meets all of the conditions contained within the by-law;
and that maintenance of the blinds will be an owner responsibility.
The by-law could include conditions about style, size, colour etc.
Blinds can usually cover a maximum span of 5m. If your balconies are longer than that then your owners will need to install two blinds, and you will need to decide on a type of side fixing or restraint to prevent the blind from flapping about e.g. a wire or a channel. Some side fixings are more obvious than others and will therefore impact on the appearance of the scheme more than others.
Your Committee members are not trained designers, stylists or colourists. Some committee members may have no idea and no ‘taste’ at all! A colour scheme designed by a 75 year may be quite different from a colour scheme designed by a 35 year old. Many committees contain people of an older age group.
I suggest that your scheme employs a specialist to come up with two choices of styles and colours and then allows the OC to chose between the two. After that choice is made then your OC should proceed with the by-law approval.
There are lots of alternatives for shade e.g. louvres, and blinds, and lots of companies that supply these types of shade products. One such example is this: https://www.stratco.com.au/au/patios/outdoor-blinds/ambient-outdoor-blinds/
The assessment from your SM sounds reasonable.
The reasons for the discrepancies are probably because the EPA Regulations are the bare minimum for safety. Fire & Rescue NSW recommends owners and occupants consider higher levels of protection than that stated in the Regulations. Some owners and OCs opt for the higher level of protections as recommended by the NSW Fire & Rescue.
Extract from Real Property Services:
It is the Owner’s responsibility to install, replace and maintain any smoke alarms within their individual unit. This includes replacing the batteries and testing once a year.
The exception to this is if the smoke alarm was installed by the Owners Corporation. In that case, the owners corporation is responsible for maintaining and testing the smoke alarm.
If an individual lot owner fails to replace their smoke alarm once it has passed it’s used by date, it would not affect the Owners Corporation’s strata insurance and The Owners Corporation would still be compliant with the Environmental Planning and Assessment Regulations.
This same topic was widely commented on in a previous thread, including some very good advice from scotlandx and others.
http://www.flatchat.com.au/forum/by-laws-and-outlaws/operating-a-hairdressing-business-in-garage/
My recommendations are: Have you contacted NBN? They may have a process whereby they can obtain entry.
If not then you may need to seek an Order via NCAT and possibly an Interim Order if the matter fits within their definition of ‘urgent’. A phone call to NCAT may help steer you in the right direction:
Contact NCAT
Telephone 1300 006 228
1300 00 NCAT or 1300 006 228 and follow the prompts.
- Press 1 for Consumer and Commercial Division
- Press 2 for Guardianship Division
- Press 3 for Administrative and Equal Opportunity and Occupational Divisions
- Press 4 for Internal Appeals
Interpreter Service (TIS): 13 14 50
National Relay Service: 1300 555 727The answer to your query about smoke alarms and common property very much depends on the type of smoke alarms that were installed and how they were installed.
The extract below is from the Strataman site:
Repair & Maintenance
Under current legislation, the Owners Corporation is responsible for repairing AND maintaining smoke alarms IF the smoke alarms are hard-wired to the lot’s electricity supply with a backup battery or connected to a common fire board or panel. However, if the smoke detectors are stand alone and battery-operated, then the lot owner (or tenant) is responsible for checking and changing the battery. Ultimately, The Owners Corporation is responsible for replacing or repairing a faulty smoke alarm.
Without seeing the plans of your lot Q2 is difficult to make a comment on.
In my opinion the stairwell balustrade would not be classified as a ‘fence’ as it is not on a lateral boundary, and therefore would probably not be your responsibility to maintain.
What is a dividing fence?
A dividing fence is a structure that separates neighbouring properties. It will usually be on the common boundary between the two properties. A dividing fence can be made out of all sorts of materials, for example bricks, metal or wood. It may also be a ditch, embankment or vegetation, for example, a hedge. It does not include a retaining wall, unless the wall is needed to support and maintain the fence.See the following article:
https://jamesons.com.au/blog/repairs-fences-dividing-neighbours-strata-scheme/
In answer to Q1 ….. Unless you can identify the culprit and can prove, with evidence, that another person damaged the fence then you would be liable for 50% of the replacement costs, with the OC providing the remaining 50%.
If you can prove that the upstairs tenants contributed to the damage then you should mention that to the OC and perhaps the OC can follow up on it and request some sort of contribution from the upstairs tenant. If the upstairs tenant was to contribute, lets say 20% of the cost, then you and the OC would share 50 -50 the remaining 80%.
I don’t like your chances of success though …. and you could find your yard being ‘trashed’ from all sorts of nasty ‘things’ from the now angry tenants above you. Is it worth it? Only you can decide.
If it was me I would just split the replacement fence with the OC on a 50 – 50 basis, and hope that the stronger new fence keeps the upstairs tenants out of your property.
Which body is requesting access to the common property roof space …. is it NBN, or is the Owner’s Corporation, or is it a Lot owner?
If it is NBN then it is my understanding that NBN have a statutory right to install cabling and a person cannot refuse access.
There are also two sections of the Act that may be useful to you.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 122
Power of owners corporation to enter property in order to carry out work
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.
If there is a defect in the current cabling then the following section may be useful.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 119
Work to rectify certain defects
119 Work to rectify certain defects
(1) An owners corporation for a strata scheme may carry out work that is necessary to rectify any of the following defects:
(a) any structural defect in any part of a building comprised in a lot in the scheme that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property,
(b) any defect in any pipe, wire, cable or duct that provides, or through which passes, any water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil or other service (including telephone, internet, radio or television services) within a lot.
(2) An owners corporation may carry out the work at its own expense if the cost of the work cannot be recovered from some other person.
In my opinion, if the internal doors are added to an existing framed opening then that should present no problems as no structural issues would probably be involved. This would probably be deemed to be a Minor renovation, however in certain circumstances it may be deemed to be a ‘Cosmetic’ work if only things such as screws, paint, and fillers are applied to the walls. You may not need approval from the OC if it is ‘Cosmetic’.
If a wall is being ‘opened up’ to install the doors then check whether the internal wall is a structural load bearing wall. If you are intending to ‘open up’ a wall then a structural engineer should be able to advise you. Try and obtain a copy of the original plan. ‘Opening’ a wall would probably be a major renovation.
Building or installing a small pantry on an internal wall should present no problems. Pantries are often modular. If you are not undertaking a full renovation of the kitchen and the pantry it is merely screwed to an internal wall then it may be deemed to be ‘Cosmetic’ work rather than a Minor renovation. You may not need approval from the OC.
This is a tricky issue and it depends on a number of things …… they are ‘tenants’ if the document that they may sign is considered a ‘lease’, but they may not be ‘tenants’ if the document they may sign is considered a ‘licence’.
There are subtle differences that may rest on the formality or the informality of the agreement, and issues such as whether there is ‘exclusive possession’ of the premises or not, or whether the ‘possession’ can be readily terminated.
The mere use and occupation of a single bedroom and a bathroom within a larger residence and where the owner remains on the premises would most probably be considered a ‘licence’ rather than a ‘lease’. This is clearly not ‘exclusive possession’ of the premises.
However, it gets into a ‘grey’ area if the owner has locked off a bedroom to store their own possessions in, or has locked the garage to store their vehicle in …… perhaps this is not ‘exclusive possession’ of the premises either as the owner may be able to access these areas of the premises during the term of the agreement …… therefore the agreement may also be viewed as a ‘licence’ rather than a ‘lease’.
Each situation may be treated differently by the courts depending on the circumstances.
The following link may assist.
https://www.netlawman.com.au/ia/lease-or-licence-which-is-right-for-me
Whether the agreement is a lease or a license I would think that there should at least be some sort of signed ‘code of conduct’ agreement, and at most there should be a signed declaration that the by-laws have been read, understood, and will be complied with.
And here is a Victorian perspective http://www.hlp.org.au/page/803/is-your-client-a-tenant-resident-or-licensee-
and
The new Secretary is correct in stating that the privacy screens are a Major Renovation. They would clearly be impacting the external appearance of the building.
The original approval should not have been given by the Committee as they had no authority to issue this approval.
There are many different ways to create privacy that do not include fixed panels.
With regard to plants on balconies – what do your by-laws say about this issue? Planting a hedge of bamboo would also impact on the external appearance of a building so be mindful of that issue too.
Planting bamboo in heavy pots may also impact on structural weight limitations for the balcony and the overall safety of the building.
One lot owner’s objection to the use and enjoyment of their Lot being adversely affected by the actions of another Lot owner is just as valid as several lot owner’s objections. The Act is designed to protect the rights of all Lot owners, whether they are in the minority or are in the majority. The protection of these ‘minority’ rights are available via the doctrine of fraud on a power, and this doctrine is recognised by the Supreme Court.