Forum Replies Created
-
Replies
-
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 ]A motion can only be ruled out of order if it conflicts with strata law, or your by-laws or would be illegal or unenforceable. To ask for a motion to be considered at a general meeting, anyone who is able to vote at that meeting should provide the secretary of the committee (usually via the strata manager) the content of the motion in writing, identifying themselves, and adding an explanatory note of up to 300 words.
Either they failed to provide any explanatory note, or the secretary added their own note, (which is probably not ideal, but at least they identified this themselves.)
I’m guessing that the chair or secretary is indicating the motion will be ruled out of order because it is “unenforceable”? The example motion you provided is not well worded. There is not enough detail and is too vague, and so if the motion, in its current form, were approved, then the OC would not be able to carry it out. That motion needs more details – who is to organise the meeting, where and when is it to be held, what will be on the agenda, and who will cover the costs of the meeting? A better example would be “The OC will instruct and pay for the strata manager to organise a meeting to discuss the planned remedial works on the first Monday of the month, every 4 months, beginning in June, to be held at their premises, and broadcast via Zoom, from 4 pm, to last at most 1 hour. All owners and residents will be invited, and reminded about the meeting a week, and a day in advance, and the secretary, or another member, of the strata committee will be tasked to provide a 10 minute update on the progress of the works. Additional discussion points will be solicited a week in advance, and the agenda will be notified to all invitees at least 3 days beforehand. The strata manager will provide an estimate of the cost of this arrangement, which is likely to be $600 per meeting.”
That’s a quick attempt at a valid motion – the actual way of carrying out the task, and its cost, will need to be specified, in order that owners can make a decision about it. Meetings don’t organise themselves, and the organisers may not want to devote the time – it is not valid for owners to speculate that other people will want to do this, and also someone, which will probably be the owners, will need to fund all this.
However, at the general meeting, it is possible to amend the motion, and so if the proposer involved wants to do so, then they can provide a valid and better worded motion as an amendment, which will be able to be voted on. The strata manager will be happy to help draft a valid motion, I suspect, but the proposer of the motion will probably have the best chance of getting it agreed to, if they do a lot of the work, and minimise the costs involved, by doing the legwork themselves.You are on shaky legal grounds, I think. The Owners Corporation has authority over common property only, and in the case of installing an AC that would likely mainly involve a couple of holes through the walls for the pipes and electric cables. You don’t say if you are an office holder on the strata committee, but only the secretary (or delegated strata manager) has the authority to issue any demand email to the AC installation applicant. Decisions about renovations are made by the strata committee at a properly convened strata committee meeting, and not by individual committee members.
You should have sent that email to the strata manager and strata committee secretary, and request they arrange a strata committee meeting, with the substance of your email as an agenda item. Then the committee could make a decision about sending those demands to the owner asking to install an AC.
Furthermore the renovation is likely to be a “minor” renovation, which has a lower approval standard – your allegation about it requiring a special resolution is likely not correct. If the matter had been dealt with in a strata committee setting, a better solution would likely have resulted.
Your demands, as well as not being lawful, are onerous, and could very well result in the owner ignoring the committee entirely. If they ignored the committee and just installed the AC, then all the committee could do, would be to allege some of the AC installation was illegal under strata law. Assuming the AC was installed by a regular AC installation company, it is likely that it was done competently. The Tribunal, should your committee try to take action, would find in the other owners favour, in all likelihood, and could order damages, if your committee was foolish enough to take action (assuming the AC operated normally, and did not cause any problems, which most AC companies are familiar with anyway).
I have to emphasize that individual strata committee members do NOT have any power to communicate with owners, or to make demands of them, outside properly convened strata committee meetings, although the secretary of the committee may have some rights to do so, but they would be wise to follow the advice of your strata manager, and only do so from decisions made at the committee meetings.Yes, @scotlandx is right. But your strata committee secretary can call an extraordinary general meeting at any time. You need to introduce yourself to the secretary, and find out if they are amenable to speeding up your renovation approval. Because your renovation involves altering the bathroom water-proofing, it would be classed as a “major renovation”, which is a “special resolution” that requires a majority of owners present at the meeting to support it, while not more than a quarter object.
If the strata manager or strata committee is unresponsive, then you can request a general meeting yourself, provided you get at least a quarter of the owners in the building to back you.
So this is a good time to meet the owners in the building, and get them on your side. Obtain a copy of the strata roll from the strata manager, to get the contact details of the other owners, if you need to go to these extremes…As the secretary of a strata committee in an apartment building with a lot of repairs and maintenance required currently, I can confirm it is really hard at present to get tradespeople to provide quotes. The smaller the job the less interest. I presently approach about 5 companies for a job, with the hope of getting 2 or 3 quotes. Usually a lot of the companies approached do not even reply.
So the partial solution to your problem to to arrange 2 quotes yourself, and provide those to the strata manager and strata committee. Advise the manager you are doing this, and that may well speed them up. But otherwise, arrange the quotes, and advise the tradies that the quotes are being referred to the strata manager and committee once you get them. The strata committee at worst will end up with 2 quotes (which is now legally required for big jobs), and at best have 4 quotes.
While you are doing this, check the strata AGM minutes and the minutes of strata committee meetings. You should see your problem as an agenda item in the SC minutes, and in the AGM minutes check the building’s financial position and budget. Does the building have the money to make your repairs, or will it need to hold a general meeting to raise a special levy? A strata committee cannot sign off on a big expenditure unless all the money is in their back account, so a shortfall in levy income could also be a sign that there are other factors delaying your repairs… If your problem doesn’t appear in strata committee minutes, and if there are budgetary problems, prepare for a more complicated outcome…This by-law is quite possibly invalid, especially in the light of the “Cooper” case, which determined that blanket ban by-laws of things in a strata situation (such as pets, or split air conditioning systems I’d suggest), are not valid by-laws. Of course, there could be other factors in play, as pointed out by other respondents to your question, such as the building being designed especially to not require air conditioning, for example.
But how you deal with this (possibly invalid) by-law will depend on your situation?
I’m assuming you’re an owner and not a renter. How active and useful are your building’s strata manager, strata committee and owners? If they may be amenable to updating the by-law, then you could propose this at the next general meeting, and I’d suggest discussing this issue with the building’s strata manager, assuming there is one, and they are competent…
Otherwise, you can install the air conditioner, ignoring the by-law? This would then get the strata committee to uphold the by-law, and they might quickly discover the by-law would be invalid. If you are nervous about that, then you could get a strata lawyer to prepare an opinion about the by-law, which you could provide to the strata committee. This shouldn’t be too expensive.
Remember that the owner owns the airspace in the unit, and the balcony (depending on how old the building is, I think?), and all the Owners Corporation have a say over is common property. Which in the case of a split cycle air conditioning system is likely to be some small holes through the external walls, for the pipes and power cable) – but make sure you don’t compromise the water proofing on the balcony. Also, you need to pay attention to the water drainage, when the AC is cooling – air conditioning companies often let that water drip on to the balcony floor, which is handled by the balcony drain – assuming there is one (ie, the building is relatively modern). There might be by-laws about not letting water run off the edges of your balcony, and this is also likely to be unlawful, as creating problems for people below you. But you can collect the water produced in a bucket, or in an evaporation tray as part of the AC system. When you plan you AC system, make sure all these issues are dealt with.It’s really a difficult situation, but the local council is unlikely to cooperate, unless there are special circumstances involved, such as your building being part of, or beside, a commercial centre. If you think about it, the only thing the parking inspectors can police is time restriction, such as not occupying a parking bay for more than 24 hours? All they have are car registration numbers, and this cannot separate real visitors, from resident’s and stranger’s cars. This is only a minor problem with visitors parking, and the major problem is with residents parking their (2nd) cars there, or people using it who are not actually visitors to your building.
In our building we improved a similar situation a lot by installing a boom-gate to allow access to the visitors parking bays. A visitor must have a building access fob, or buzz a Unit in the building, to get the boom gate to open. Along with CC TV cameras, and an active strata committee, this has cut the inappropriate use of our visitors parking area a lot. But your building may not have a suitable access system in place, nor a CC TV system? In that case, I’d suggest you arrange a security company to put together a proposal to upgrade your building’s security, by installing a boom gate to limit access to the visitors parking, and to upgrade the building’s security generally, with an electronic access system, an up-to-date intercom system that can operate the boom gate and entrance doors remotely, and a CC TV camera system covering the common areas, including the boom gate, driveways and visitors parking areas.
You seem to have a lot of visitors parking bays (40) so you should check the building’s Development Application, and with the local Council, to see if that number are all mandated legally. If not, then you have an option, once you get a boom gate, to lease a few of the bays to residents, or other people, which could help with the costs of this upgrade.It looks like this may be an invalid by-law, when viewed from the “Cooper” case standpoint. But there are other factors that may be relevant, such as the building’s power supply, or its design and any relevant development application conditions. The easiest and cheapest way of challenging this, may be to assemble all the facts, and then arrange for a legal opinion, from an experienced strata lawyer. If there are other owners in the building interested in getting A/C then share the cost. Then send the opinion to the strata committee, together with an application to install the A/C, assuming the opinion favours you.
It’s not clear if you are an owner or renter? But regardless, in most large apartment buildings the front Unit doors are the property of the Owners Corporation (being fire doors). However, while the OC owns the door, the owner owns the locking mechanism, and can re-key the locks. However, you need to check the building’s by-laws, in case there is something special about the locks in that building? If you are renting, then contact your agent, and notify them that you believe the security of the Unit is compromised, and ask them to change the lock, (or you could offer to pay for that?).
Also, generic keys and locks are unusual, for an 80 Unit block. How do you know that? Double check. If that neighbour has a key to your Unit, it’s possible a previous resident gave them a key (in case of being locked out, say), and they may not have returned it.As the secretary of a strata committee, I attended a mediation session at Fair Trading a number of years ago, in relation to an owner who had not paid their levies for a considerable period. During the mediation the owner made a number of promises and undertaking to pay their levies. But that did not happen, and the owner’s continued not paying their levies.
So I contacted Fair Trading to request copy of the mediation determination; I assumed a transcript of the mediation meeting had been kept, or at least a summary of the outcome. It was shocking to be told that Fair Trading did not keep any record at all of the mediation session, or its outcome. They could not even tell me the mediator involved to get his recollection of the outcome. So what was the purpose? Keeping no records means we had to rely on memory, which has no legal validity. So mediation is actually worthless, or less that worthless, since it wastes everyone’s time and money, and any result evaporates into the ether the moment the session finishes.There are several pets (dogs and cats) in our building, and the pet owners have not applied for permission to keep them. Probably because the application to keep a pet (under our by-laws) requires a tenant to provide evidence the owner of the Unit consents to their keeping a pet. When questioned, the tenants say the pet isn’t theirs, but is just visiting their Unit. Under current strata laws, the pet must constitute a real nuisance, for the Owners Corporation to take action. And the pets are mostly well behaved.