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If your OC wants to stay ‘green’ and maintain its sustainability credentials is your OC able to put solar panels on your building to make ‘green’ power to run the a/c units?
Sir Humphrey – Sounds like a great idea. I might suggest the same for our scheme.
Do you have any recommendations for a company that makes the picnic shelter and tables? What sort of costs were involved?
Is it necessary to have common property toilet facilities near by to the outdoor entertaining area?
JonH – Does your concierge keep a Log of: which Lots in the building needed assistance; at what times the assistance was needed; and what type of assistance was required by that particular Lot? Does your concierge keep a Log of ‘incidents’ that occur at your building?
Having substantiated evidence that you can rely on, such as a Log, may help you work through your problems.
Another suggestion: Are you able to take a look at the concierge’s contract to ensure that the concierge is not being asked, by a select number of Lot owners, to undertake functions that are not part of the contract?
The issue of whether the replacement of a balcony balustrade with a safer type of balustrade is considered ‘maintenance’ or an ‘improvement’ has been considered several times in QCAT.
NB: QCAT is the Queensland equivalent of NCAT.
I am not sure whether the issue has yet been Adjudicated in NSW under NCAT.
I recognise that Tribunals in different states can make different decisions but it is interesting to be aware of the reasons behind the decisions.
The U. K. Court of Appeal decision is often cited: Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264
Below is the long held QLD position on the distinction between ‘maintenance’ and ‘repairs’ and how it pertains to balustrades.
The following extract is from a very recent decision ‘The Presidents Lodge [2018] QBCCMCmr 226 (2 May 2018)
“maintenance” rather than “improvements “
In No 9 Port Douglas Road [2006] QBCCMCmr 674, an adjudicator considered this distinction in the following terms: On a broad view of “maintenance ” a body corporate should be allowed a reasonably wide discretion in the means by which it performs its maintenance obligations[6] and any repair can invoke an element of improvement but still remain within the general concept of repair.[7] For example, the view has been taken that quite different solutions or methods of repair might be categorised as “maintenance ” if the principal intention of the proposal is to return something to a useable condition or state of repair .[8] For example, replacement of a balcony balustrade with a safer type of balustrade can constitute “maintenance”[9], as can redecorating common property lift landings and replacing the floor coverings[10]…………..
On balance, I prefer a broad view of “maintenance ” that does not classify a change as an“ improvement ” if the purpose of the proposal is maintenance of existing structures or things, even if the work involves some change or the replacement of something with a modem equivalent.
While it may sound like an attractive option for some schemes, I am not sure that the ‘increased insurance for common property’ argument against AirBNB will have any ‘legs’.
However, the OC can take action against a landlord (i.e. the Lot Owner) under limited circumstances to recoup any damage.
See here:
https://www.reinsw.com.au/Web/Members/Real_Estate_Journals/201601/Airbnb.aspx
The relevant extracts (from a representative of CGU) are:
“The fact that the damage was caused by a person residing in the property under a short-term letting arrangement does not have an impact on the building insurance,”
and
“in order for the Owners’ Corporation to take action against the landlord to recoup the costs of any repairs to the common property, they would need to prove that they knowingly breached their duty of care and obligations as a lot owner.”
From your comment it appears that you have confused administrative charges with another type of charge – a ‘wear and tear’ charge.
Generally you cannot discriminate between occupants of the building.
There is an obligation on owner’s corporations to be reasonable in decision making.
The material used on the flooring should be sufficiently durable to withstand suitcases and other wheeled devices. If it isn’t then perhaps your building should consider installing something that will cope better with both foot traffic and suitcase traffic.
If cabin crew or airline pilots were to live in your building then they too would frequently take suitcases across the common areas. Parents with prams, people in wheelchairs or with mobility aids, all use wheeled devices that could accidentally bump walls etc.
If you believe that occupants are causing willful damage (rather than accidental damage) then you can always suggest the installation of CCTV cameras, in the common areas and if damage is found to be willful then your scheme could make a claim against the owner of the AirBNB apartments. Owners are responsible for the conduct of their guests and their invitees.
apartment-living: Are you able to include on this forum the full transcript of the Pet By-Law for your building?
It is often the case that Lot owners perceive the by-law regarding pets to be a prohibitive by-law (a blanket prohibition) when in fact it is merely restrictive. The actual wording of the by-law will indicate this.
My 1970’s building is facing the same dilemma. We have had a structural engineer’s report undertaken which has detected structural issues in the existing steel supports on the balustrades so we are going through the process of obtaining designs and quotes to replace the balustrades. We cannot replace ‘like for like’ and need to search for another alternative.
This is a ‘repair’ rather than an ‘improvement’.
The ‘jury is out’ on whether litigation could occur if someone fell from your existing balustrades.
The greater the foreseeability of risk and probability of harm caused by a defective balustrade, the higher the obligation on the owners corporation to take precautions to address the risk.
With more and more families with children moving into apartment buildings it is better to be safe than sorry.
If the balustrades are ‘under height’ for the current code but are still in sound condition the Committee should offer the Lot owners the choice between installing a balustrade height extension to increase the height up to 1m or, alternatively, offer a total replacement of the existing balustrades with 1m high balustrades. The pros and cons of the Motion with Alternatives should be clearly outlined.
If balcony extensions are offered then the balcony extensions must meet the stringent stress testing and performance requirements that are required for balustrades. Many bits and pieces that are ‘tacked on’ the top of an older style balustrade would not meet this test.
This is an issue that impacts on both the safety of the building and the appearance of the building. In my opinion these are matters that should be decided by the whole body of owners rather than the Committee.
You might not have this intention but a subsequent purchaser may think differently.
Adding a second kitchen usually denotes an intention to create an additional dwelling. I don’t believe council will approve of this addition … even the addition of a ‘wet bar’ raises red flags with many councils.
I don’t believe that a grant of exclusive use would allow for this to occur. You do not own this space. The OC owns this space.
My thoughts are that if you undertake an activity that may be in breach of the Act or any other Act then you risk having your grant of exclusive use revoked.
It is my understanding that only a right of ownership will impact the unit entitlements. A grant of exclusive use is not a right of ownership.
As for needing council approval for the proposed work …. I am pretty sure you would require council approval. You are changing the use of that space.
I personally think that your OC should not have approved your renovations to the roof area. It appears that you may be preparing to rent this space out being that you are creating a kitchen, bathroom, and an office that you are saying that you will use as a bedroom, and possibly make a profit from it. In my opinion this is not what the original grant of exclusive use would ever have envisaged.
This probably depends on whether your security system is wired to your meter box, or whether it is wired to the common property meter box.
You should be able to find out this information from the strata records. Your Strata Manager should have all of these records.
As an owner you are able to access these records for a small fee. Contact your Strata Manager and advise them that you wish to search the records and organise a date and time to do this.
To save yourself a lot of time try and narrow your search down to a specific period in time so that the Strata Manager will have the material ready for you.
If, after searching the records, you believe that an error has occurred in the making of the original decision to grant exclusive use of this area then either you, or the owners corporation may want to take this matter to mediation and then possibly on to adjudication.
You would no doubt be aware that the owner with the exclusive use grant will fight hard to retain it and will not give it up easily. Put yourself in their ‘shoes’ and you will understand that they have a lot to lose.
This is a complicated case so you may need legal advice.
Incidentally, I can’t understand why the owner’s corporation paid for the repair of the membrane when it was the lot owner who caused the damage??? An owner cannot damage common property and usually cannot drive a nail or a screw into common property. The lot owner should have been made to pay to repair the damage to the membrane.
An owners corporation can only repeal an exclusive use by-law that confers on the owner of a lot, or the owners of several lots, certain rights or privileges to use a part of the common property, if it has the written consent of the owner(s) of the lot(s) concerned.
The Strata Schemes Adjudicator has the power, under the SSMA, to repeal an exclusive use by-law if the lot owners concerned unreasonably refuse to consent to the repeal of the exclusive use by-law. However, the Adjudicators rarely extinguish the proprietary right of the owner(s) of the lot(s) once a special rights by-law has been granted, particularly if the lot owner has paid for this area.
You might like to suggest that if the Chairperson wants to take on the role of the Secretary then he has the option to resign as Chairperson and apply for the position of Secretary.
It should be the Secretary who checks the Minutes. The Chairperson does not have the authority to do this. SSMA [s43] states the following:
43 FUNCTIONS OF SECRETARY OF OWNERS CORPORATION
The functions of a secretary of an owners corporation include the following:
(a) to prepare and distribute minutes of meetings of the owners corporation and submit a motion for confirmation of the minutes of any meeting of the owners corporation at the next such meeting,