Forum Replies Created
-
Replies
-
Fire safety in strata – a very, very vexed issue, in my experience. This is how I think it works (but I could be quite wrong):- Modern strata buildings will have a fire safety “Schedule”, which lists all the fire safety measures for the building, and which were specified in the building code at the time the building was constructed. These measures listed in the Schedule are all features that the OC needs to arrange to file an Annual Fire Safety Statement (AFSS) about. The AFSS confirms the measures listed in the Schedule are all being property maintained and are working satisfactorily. Your local Council, and the NSW Fire service get copies of the AFSS and check it is being lodged, and fire professionals need to inspect these measures and certify they are all good. Check with your Council for a copy of the Schedule for your building, if there happens to be one.
Older buildings may not have a Schedule. If so, then they don’t have to do anything about an AFSS, but they still have a duty to maintain any fire safety measures the building might have. Your local Council is gradually going through the strata buildings in their area, and issuing a fire safety upgrade Order to those buildings lacking a Schedule. Those buildings that get an upgrade Order then have to have a fire safety specialist prepare a report of what the building needs to do in order to bring their fire safety measures up to the current building code. Then Council will review the report, and usually issue the Order with a deadline for the building to comply, making them do renovations to upgrade all their fire safety equipment and so on. Those reported fire safety features must be listed in the Schedule, and from then on the AFSS must be filed annually.
Council are issuing such Orders according to some arcane system, but any fire emergency in a building without a Schedule will likely trigger the process to have Council issue an upgrade Order. I’ve heard that a resident or owner in a building without a Schedule can make a big enough fuss at Council, to also trigger the Order… Probably, it would be a good idea to meet with the Council’s fire safety officer or engineer, to discuss your building, and to ask what Council would need to issue that Order? If you were to get a report done, by a properly qualified fire expert, outlining the serious safety problems, which you provide to the Council’s fire safety officer, then that could also trigger an Order, too. The NSW Fire Service might also be involved in triggering a fire safety upgrade Order for a building without a Schedule, but I’m not sure how.
But be aware that your neighbors will likely not be happy with you, if you succeed in triggering a safety upgrade Order, because of the cost involved of bringing the building’s fire safety measures up to code. Keep in mind that the whole building must be brought up to code, and that you can’t pick and choose, such as to just do your Unit, or just do some items like the floor area, and not the rest. It’s everything, for the whole building. So save up your money for the inevitable special levies of hundreds of thousands of dollars, quite possibly.
A smarter approach, is to get your strata committee and other owners on-side, and decide that an Order is inevitable sooner or later, so it will be much better for your building to take the initiative. Get the report, but approach the Council on your own initiative with a well thought out plan for the upgrade. Since you are initiating it, you can plan the renovations and upgrade over a longer period, and at your own convenience. Rather than responding to at Council Order to carry out an upgrade over a short period, without much say in it.
Good luck. And here’s hoping the Order isn’t triggered by a serious fire in the meantime!
You need to check your by-laws, to see which by-laws (if any) this behavior is breaching. Some buildings have by-laws that restrict how the parking lots are used (ie, just to park a vehicle). In some buildings the parking lots are owners property, in others, they are common property, and commonly, if common property there may be an exclusive use by-law registered that has a result that the common property parking bay becomes the owner’s property. It’s complicated.
The Owners Corporation has more say in how the area is used, if it is common property. But what can be done will depend on the actual wording of a by-law. (You can also consider getting a new by-law adopted to regulate the activity – see a strata lawyer about this, if you are interested, and not adverse to spending money on that.)
The best approach is to make a noise complaint. An owner cannot damage the amenity of other owners to enjoy their property (I’m paraphrasing), so just like someone smoking with the smoke penetrating your Unit, or playing loud music to upset your amenity, you would have a reasonable chance to get an order to prevent this. But you need evidence on the harm being done to you, not just a complaint. Maybe talk with a strata lawyer?
This seems the perfect opportunity for the SC to shop around for an alternative lift maintenance company. The threat does seem overblown, and would be a credible excuse for breaking your existing contract. Get two or three more quotes for your lift maintenance, with the emergency phone upgrade included, and then ask your existing provider to match the best offer, or switch to a new provider, who will no-doubt help with the transition. (Our building recently changed across to Hamilton Lifts, who gave us a good deal and have given good service, so they might be included as one of the companies you might want to talk to.)
I think the crux of the “Cooper” case is that the OC must demonstrate actual, real world, interference with the amenity of other residents. In other words, by-laws that ban any pets because they might create a problem are invalid. But pet by-laws that allow for the removal of pets that actually do create a problem are valid.
So, if you keep a pet, and then the OC takes action to uphold their by-law against you, they will fail unless they have evidence that your pet is creating a real world nuisance.
The argument that some other owners don’t like pets, or that pets are dirty would not hold up, without evidence that an owner is terrified of dogs (say) or that your pet pooped on the front lawn of the building (say). Even then, the nuisance has to be a reasonable one. A one-off incident probably would not count, and they would need evidence of a persistent problem.
In the decision from @TheHood the key terms are “actual unreasonable interference” and “a particular animal in the absence of satisfactory evidence of unreasonable interference by that animal with neighbourhood amenity”. I’m not sure what the case was about exactly (maybe provide a copy of the decision?), but if it was just to invalidate the pet by-law, I can understand why that lost.
An OC may have a by-law that allows pets to be removed. But they can only do that for a specific pet, for specific reasons based on clear evidence of mischief, that interferes with at least one other resident’s enjoyment of their property, with evidence of that required.
And the only way that can work, is for the pet to be in residence in the building already. So a pets by-law generally can’t easily prevent a pet being kept on the property initially, but once it is there, if it makes a nuisance of itself, then the by-law can allow for its removal.
An exception is where any pet coming on to the property must always create a nuisance – eg large dogs in a building designed for elderly or infirm residents, or cats in buildings that are havens for native birds or beside a national park.
We have had a similar issue, and have the toilet door code displayed on the Notice board (located inside a foyer, so only visible to residents and visitors in our security building).
But what you are doing is problematic under strata law. The toilet is common property, so all owners and residents have the right to use it equally. You can set rules (eg, door code only available to workers on request), but those rules must be in a by-law registered and updated as a special resolution at a general meeting. You cannot legally discriminate against some owners, or just give a small group of owners rights that you deny to others. In strata, it’s all in, or all out, no exceptions.
Similarly, shutting down an asset of the building, by closing the toilet, requires a special resolution at a general meeting of all residents. A special resolution needs a majority of owner to vote for it, but fails if a quarter (ie 7) owners vote against it. You might be lucky, to not get 7 owners not to oppose the motion, but in the future some owners will get annoyed to see a toilet they can’t use, and will agitate for its reopening. Note that if you have a swimming pool or gym or the like then you might need to make a toilet available under other legislation, I believe. You development application might also specify the toilet is required…
My suggestion is to create a by-law for its use. Such as the door to have a coded lock, the code to be changed yearly, and to be made available to the strata manager, office holders of the strata committee, and any owner who requests it, with a good reason. Or perhaps to display the code on the building notice board only visible to residents. Also, this is a good opportunity to consider installing CC TV cameras. We have them and they record the common area outside the toilet, so anyone using the toilets is recorded. A notice that there is surveillance, will improve resident’s behavior generally, in our experience. Plus it can be used to identify vandalism, if you are lucky with catching when it occurs.
I’m not sure the reasoning above is valid? This is the provision:-
“(4) Polls – A poll may be demanded immediately before or after a vote decided by a majority in number has been taken. The demand for a poll may be withdrawn by the person who made it.”
The key phrase is “…immediately before or after..”. You need to call for a poll actually when the vote is taken, and not request a blanket poll vote ahead of the meeting. So at the meeting, each time there is a vote, you need to ask for a poll. I think the owners at the meeting can vote to permit that? In any case, holding a poll will slow down the voting a lot – the strata manager has to key in the votes to a spreadsheet, and identify everyone according to their lots, and lot entitlement. If the strata manager does not have the lot entitlements available (unlikely but possible), then they may need to defer the vote to another meeting. Since you are paying the strata manager to conduct the meeting, this delay will cost the OC more for the extra time involved, and if the result is not changed, that will not make the other owners happy, nor will the extra time taken up by the meeting.
In practice, most voting is done by a show of hands, according to the lots, and if the result is contentious, and the poll might change the result, then one is called and used. But annoying the other owners and the strata manager by wasting their time and adding to the effort for no good reason is not a good idea in general…It sounds like you want to upgrade the building’s common property, to manage the access to that “common property” yard area that seems to be adjacent to Lot … That upgrade seems worthwhile, and so you (and the other interested and cooperative owners) should get together and draft a suitable motion to put to a general meeting. Depending on the level of support and the building’s finances, it may be helpful to get some quotes from builders, to provide options and cost estimates. For example you could fit locks to prevent access to the common property yard, apart from authorised persons (and there are special security ABLOY locks that only meter readers and electricians have a master key, for instance). Or you could install locked cabinets just around the meters and valves. Or decide to use the area for something worthwhile for the building, like a vegie garden, or compost bins….
Your strata manager can help draft a motion, or have a go yourselves. Propose the best option, or a choice of a couple of options, along with the quotes and a budget at the general meeting of all owners. The owners can then approve, with a majority vote, but you may need to increase your levies or raise a special levy if you have insufficient funds, and include that in the general meeting motions, if so.
The second step is to review your by-laws, and amend or add some to administer that area. For example you could add a by-law that does not permit access by residents and owners and others to that area, unless they have reason. But back that up with locks, and a by-law can restrict access to the key to just office holders, or 2 strata committee office holders together, if one alone may not solve the problem.This is a serious problem. Under QLD strata law it is mandatory to insure the strata building. If you don’t get your building insured, then you are breaking the law. If something happens to your building, then you will be in real trouble, and if your building is destroyed or damaged, by fire, flooding or a cyclone, all common in QLD, then you could lose everything.
There are several insurance brokers, so you should approach another one, for them to see if they can get your building a policy. But an unresolved dispute that has festered for years is liable to not attract much interest, and what offers you might get will be very very expansive.
You need to resolve that dispute! Get the owners together and fix it. That may mean going to the QCAT:-
https://www.qcat.qld.gov.au/case-types/community-living-and-body-corporate-disputes/body-corporate-dispute-process
Get advice from your strata manager. Or if your building doesn’t have one, or the one you have is useless, then get a good one. Or (slightly tongue in cheek), sell up, if you can!As a strata issue, this could be treated as a capital works upgrade of the facilities of the body corporate, like as if the body corporate were to replace the driveway to all Units. As such the normal laws apply, and probably requires the owners to approve the expense at a general meeting. (It would in NSW – I’m guessing it’s the same in Victoria). It would be paid from the sinking/capital works fund, and a special levy might be needed if the body corporate doesn’t have sufficient for that. If you don’t want this upgrade to go ahead, start lobbying your neighbours. Although consider that this upgrade will add to the value of your property (ie, tenants will want good internet access or the resale value of your Unit would be better with this too.)
Owners can submit a motion for the agenda of a general meeting, so you should do so (and find out when the Annual General Meeting is due). You request to add that motion must be made before the Agenda is prepared and sent out (which is commonly 3 weeks before the AGM date).
The agenda motion you should word to require yes/no responses:- as a guide, something along the lines,
“That the owners corporation resolves to:
(a) have the strata manager engage the builder [NAME] carry out an inspection of the roof of all villas, and provide a report of their current condition, within 1 month of this meeting, and provide the report to all owners,
(b) if the report determines that any roof needs repairs, then have the strata manager arrange at least 2 quotes from qualified roof repairers, specifying the work required for any repairs, and the a quote of costs, according to each villa, and in total, within 3 months of the report being received,
(c) call a general meeting within 1 month of the 2nd of these quotes being received, with agenda motions to (i) authorise repairs, (ii) select and authorise a repairer to carry them out, and (iii) determine if our current levy receipts will fund these repairs, or authorise a special levy to be used to fund the repairs, and if so, to (iv) authorise the owners corporation to raise that special levy for an appropriate amount.”It sounds like the strata manager is procrastinating, for whatever reason. You should therefore propose a motion with time limits specified, so he has to proceed relatively quickly. You need yes/no votes on all parts, so you need to get the other owners on side ahead of time. Note that raising a special levy is an ordinary resolution, so requires a 51% vote in favour to pass (and the vote is counted by unit entitlement, not by lots, although a lot vote might have the same result), of owners present. At the meeting, the owners can amend motions, so you can adjust the fine points, but the amendments can’t be too substantial, so make sure all the important issues are covered…
And if the motion is voted down by the other owners, then you may need to go to the Tribunal for an order. So get your fellow owners on side, and do some politicking, ahead of time, to get this done quickly and easily.
This is a little complicated, but the first issue to consider is what type of renovation you are planning? NSW strata law splits renovations into 3 kinds: “cosmetic”, “minor” and “major”. Cosmetic renovations don’t require any approval. Minor renovations require some approval, which can be from the Owners Corporation at a general meeting, the strata committee or the strata manager – the choice depends on your building’s by-laws, such as if the OC has previously delegated the authority to approve minor renovations to the strata committee, or to the strata manager. Major renovations, which generally involve renovations that affect the water proofing in a unit, or structural walls, or the outside appearance of the lot, have to be approved at a general meeting of the OC.
NSW strata law has a list of what kind of thing falls into each category. More details here => https://www.nsw.gov.au/housing-and-construction/living/renovationsNonetheless, keep in mind that generally the OC mostly has a say over the common property. For example in a typical apartment, the dividing walls to other units, the floor, ceiling and exterior walls, and structural elements like cables, pipes, support beams and pillars are common property. But a non-structural internal wall, say between the kitchen and lounge, is the owners property, and as such, the owner can remove it, (assuming there are no structural elements embedded in it.) There’s some grey area here, but if you are changing the water proofing, by updating a bathroom or laundry, or removing a walls (until you prove the wall is not structural), then the renovation is clearly a major renovation. The “Common Property Memorandum” is a good guide for what is common property, and what is owner’s property, (which your building might have adopted in its by-laws), see =>
<u>https://www.nsw.gov.au/sites/default/files/2022-03/common-property-memorandum.pdf</u>The process is generally that you apply to the strata manager / strata committee secretary to advise them you are planning to carry out a minor or major renovation, and set out generally what you plan to do. You can suggest that your renovation is only minor, and ask this be confirmed. Then ask for the approval, again, paying attention to common property that is affected by the work. You should expect to provide a report that a wall removal (say) is not structural, by a suitable expert. Your strata manager can probably provide you with some prior examples as a template to follow. You should also expect that a renovation by-law will be required, so that the common property affected by the renovation then changes from the OC’s responsibility to repair and maintain, to the owner’s.
The owner is expected to pay for these tasks. You might be asked to pay for calling a general meeting, unless there is already a general meeting (eg the AGM) scheduled anyway. There will usually also be a cost to the owner for updating the by-laws to add a renovation by-law.
But it is true that strata committees are not able to make decisions about construction. They should stick to ensuring the common property of the building is not adversely affected by the renovation, but to do so, they can reasonably ask for reports from experts to ensure this. They will often ask questions to see if the work will affect the common property or not. If you use a builder for the renovation who has done renovations in strata buildings, then the builder will usually handle all the reports and will answer the OC’s questions about the work. Generally, the owner will submit a summary of the work, the plans for the work prepared by the builder, and a structural engineer’s or other expert’s report about common property issues, like whether a wall to be removed is structural, whether new wooden flooring is sufficiently quiet, etc.
Bathroom or laundry renovations that affect the water proofing are sometimes controversial. The building code now requires broad water proofing (in multi-storey buildings anyway), and certification of the work. Your builder might have an unusual view of whether their work is within the building code, and that might differ from the OC’s view. Your builder should provide the OC with details of their qualifications, insurance, etc, beforehand, and the right certification certificates afterwards.
Finally, the OC will have a say in how the work is done – days and times for the work, access for skips, and noise levels. So you need to negotiate these conditions with the strata committee too, although your builder will probably have experience about handling this too. So, ideally use an experienced builder who has done work in similar strata building before…
I agree that you need to investigate the wording of the by-law involved, since it is unlikely to be valid. But your question raises another issue, that the strata committee for your building has become a battleground between groups of owners, which does the building as a whole no good at all. It is a big building with 200 lots, so having the strata manager doing much of the work makes sense, especially spread over 200 strata fees being collected.
“As Secretary I was bombarded with 2 and 3 page questions which was strategy from the malcontents to upset the committee and replace them with like thinking owners. My response met with disagreeing with my answers and asking for more information.” Why are you involved with this? This would be better referred to the strata manager to prepare answers. Or just prepare a quarterly newsletter combining all the issues. The secretary of a large strata plan should be managing the strata committee and handling large issues, not sparring with individual owners.If the Owners Corporation generates an income (such as from the receipt of renting out a car parking space), then there are likely to be taxation implications that the other owners might not like.
As I understand it (and this is still and area I am very hazy about), paying money to the OC’s account will trigger tax provisions about this money being “non-mutual income”, which the Tax Office regards as money that reduces all lot owners’ levies, divided according to their unit entitlements. So all the owners should declare this non-mutual income in their personal tax returns each year.
If some owners are getting a pension, then they should declare this income there, also, which may cause problems. Plus you need to factor in the administration of these rents, and how the OC will handle anyone who fails to pay the amount owing – these amounts are not levies, so need to be managed separately. Of course, most strata buildings have some additional income (eg, from replacing key/fobs) which is ignored, although I think strata managers tend to hold his in a trust account, rather than distribute this to the owners, to avoid reducing their levy payments, and so, avoid them having to include this in their tax returns.
Also, some strata buildings, especially older ones, will have visitors parking bays that are not specified in the DA (this is the case with our 50 yo building), which should be checked, and if this is the case, then the OC might have some more options.For example, a one-off sale (or exclusive use agreement) of a parking bay, means a single tax declaration in the year it occurs, for all the owners if they agree, and is less complex administratively.
Based on the “Cooper” and “Pittman v Newport” cases, this by-law has a high probability of being invalid. There is scientific evidence that tobacco smoke, breathed passively, and on an ongoing basis is a hazard, but the same cannot be said about barbeque smoke. A resident cannot cause “a nuisance or hazard”, and in the note in Section 153 “the penetration of smoke… from smoking may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment” of other residents, depending on the circumstances it occurs. Cigarette smoking is regulated generally, due to its health hazard, but the same has not occurred for barbeque smoke. And the “Cooper” decision makes it clear that there must be a real nuisance or hazard, not just a possibility of this occurring.
What are your resources, and how seriously do you want to overturn this by-law? You could take the OC to the Tribunal to get the by-law declared to be invalid. Or you can just ignore the by-law and start up your barbeque, (hopefully in such a way as to minimise any nuisance – it, using a gas version, which is fully safety compliant, and only rarely). Then let the OC try to take you to the Tribunal… That will cost you money and time, even doing it by yourself. You will be better able to do something, if you are an owner, or if you get a group together to challenge the by-law.
If the OC is potentially amenable, then perhaps you could coooperate to investigate the by-law’s validity. Perhaps propose that the OC should get a strata lawyer’s or a barrister’s opinion on its validity, and to abide by the decision, which should not be too expensive, and with the OC might fund itself?
I found this guide:-
How are strata fees calculated?
As a guide, expect to pay between 0.3 per cent to 1.2 per cent of a property’s value in strata fees. Those with more amenities will be in the upper end of this range.
Always do your homework on strata fees by looking at what is being charged by comparable buildings. Low levies can correlate with poor maintenance. This can not only be expensive to fix but can impact the long-term value of your property.
[ https://www.ljhooker.com.au/blog/ultimate-guide-strata-fees ]