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Sorry I got the subsection wrong Lady Penelope but I’m not sure what the problem is, that is what I was saying – you have a statutory cause of action, so you don’t have to worry about negligence?
The two cases are relevant, because the SC held that there is no common law right of action which may be separate to and sit alongside a statutory right of action.
There have been two recent (2016) Supreme Court cases in NSW that held that an owner can’t bring an action in negligence or nuisance against the OC. That is, the OC does not owe an independent common law duty of care to a lot owner to maintain and repair the common property. The two cases are James and McElwaine.
So if the insurance position put by Austman is correct (they will only pay out if the OC was negligent), there would currently be no basis for a claim at common law in NSW.
However, section 106(4) of the NSW Act gives an owner a statutory right of action against the OC to recover losses arising from the OC’s failure to maintain and repair the common property.
The important thing is to make sure that the OC’s insurance covers the OC for claims under section 106(4). Our OC’s insurance has paid out, but the terms of our insurance may be different to Austman’s. Any owner should also maintain their own insurance, it would be very foolish not to.
Jimmy is right, ceilings are common property, the OC needs to give permission for anything like that.
As a starter – vermiculite ceilings may or may not contain asbestos, the only way to tell is by a laboratory test. As a starting point ask the owner to give you the laboratory test they have carried out that confirms the ceiling has asbestos in it.
If it does then the issue is whether or not it needs to be removed, if it is undamaged it isn’t dangerous. It is more likely the owner wants it gone because it looks awful, which is fine, but they still need to get permission. If the ceilings do contain asbestos the owner must engage appropriate people to do it and satisfy the OC that proper processes are being followed.
You are right that if the owner replaces the ceilings then the owners will have to approve a special by-law that makes them responsible for those ceilings going forward.
As you probably know, the owners have an obligation to maintain the common property. If the works aren’t being done, ultimately they are devaluing their properties. However, strata levies can be difficult for pensioners and if they are used to low levies it is more of a shock.
One option for them is to enter into a payment plan for levies in arrears – a payment plan needs to be approved by the owners at a general meeting.
Another option is for them to approach a bank about a reverse mortgage. The Department of Human Services also offers a pension loan scheme at lower rates.
Whatever way you cut it, if the common property needs work, it needs work, and delaying it because someone can’t pay is counterproductive. The problem your daughter will have is that they are likely to push for lower levies next time, and/or refuse to approve any higher levies.
It doesn’t matter whether you have an insurance claim or not – the primary issue is whether a defect in the common property caused the damage to your property.
If it did, then the OC is responsible for fixing the damage. They have to lodge the insurance claim, and if it is refused then they have to pay anyway.
As I said above, get someone in if necessary to write a report on what caused the damage, and assuming it is caused by a fault in the common property then advise the OC that they have to pay for it.
It doesn’t matter if it is gradual damage, that doesn’t preclude an insurance claim. The issue may be if there was a problem with the common property that the OC knew about and did nothing, in which case the insurance company may refuse the claim. You are correct, in many cases an issue doesn’t become evident until substantial damage starts showing.
I recently had several ceilings replaced that were badly water damaged, and the insurance paid for that – the damage occurred over quite an extended period of time, i.e. years. The insurance company would not pay the claim out until we had the roof fixed, for obvious reasons, but they did pay.
I am not sure why the strata manager is dismissing your concerns – if there is an issue with the common property that has caused damage to your townhouse, then on the face of it the OC is responsible for fixing it. From what you have said, no-one has bothered to find out what the cause of the water ingress is and I suggest that is the starting point. If he won’t come to the party, it would be worth your while to get someone in to determine what is causing it, and then write a very strongly worded letter telling the OC that they are obliged to fix it, assuming that the problem is being caused by a defect in the common property.
There is no point in replacing your tiles if there is something wrong with the subfloor – if it is still damp after two weeks this needs to be investigated.
Here is a link to Brown & anor v Weaver (2007)
https://www.caselaw.nsw.gov.au/decision/549f8fcf3004262463aea04c
And here is a list of cases on the LEC website where tree removal was ordered.
The OC needs to contact the Council – I think they would be very interested in the illegal works.
A builder may tell you that works don’t require a DA, but he/she would, wouldn’t he/she.
The question of a DA is separate from whether you require the approval of the OC – if the works require approval under section 110 or 111, then you need to have that. (unless as Jimmy says the owners have delegated power under section 110 to the Committee)
The State Environmental Planning Policy (SEPP) Subdivision 26 determines whether something requires a DA. If it falls within para 2.52, a DA is required. If it falls within para 2.51, you don’t need a DA. I believe the OC is within its rights to say whether or not something falls under a certain category.
Subdivision 26 Minor building alterations (internal)2.51 Specified development(1) A minor internal building alteration for the replacement or renovation of:
(a) a doorway, wall, ceiling or floor lining, or
(b) a deteriorated frame member, including stairs and stairwells, or
(c) a bathroom or kitchen, or
(d) a built in fixture such as a vanity, a cupboard or a wardrobe, or
(e) an existing sanitary fixture, such as a grease trap or the like, or
(f) shelving or racking that is not higher than 2.7m, or
(g) a work station or counter,is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item.
(2) The installation of new or replacement insulation material in the ceiling, floor or wall of a building is development specified for this code.
2.52 Development standardsThe standards specified for that development are that the development must:
(aa) not be an alteration to a food preparation area in food and drink premises, and
(a) if it is the replacement or renovation of a deteriorated frame member—be of equivalent or improved quality materials, and
(b) not include a change to the configuration of a room, whether by removal of an existing wall, partition or other means, and
(c) not cause reduced window arrangements for light and ventilation needs, reduce the size of a doorway or involve the enclosure of an open area, and
(d) not affect the load bearing capacity (whether vertical or horizontal) of a building, and
(e) not include a change to the fire resisting components of, or interfere with the entry to, or exit from, or the fire safety measures contained within, a building, and
(f) if it is the installation of new or replacement insulation material in a dwelling, it must be in accordance with Part 3.12.1 of the Building Code of Australia.Yes.
Any DA needs the approval of the owners in a general meeting, by ordinary resolution.
Yes that is a very specialist area – you would need to get advice from someone expert in that area, which is a combination of leasing and strata. One thing that would be relevant is the definition of Levies and whether that includes special levies – in all likelihood it would.
I am not an expert in that kind of thing, but if the lessee is responsible for the levies then in these circumstances you would expect the usual rights that go with that, i.e. that the lessee is entitled to vote, at least on matters that affect them, such as the setting of levies.
The short answer is no, as those types of schemes vary enormously.
That is just weird, what kind of tenancy agreement makes the tenant responsible for levies? The levies are the owner’s, and the owner exercises rights as the owner by virtue of paying those levies (usually).
If I were the tenant I would contact the tenants union to ask them what they think of that kind of arrangement.
The strata manager can only hold one proxy.
If a fine is issued and payable and is not paid, then you would commence debt recovery proceedings. The owner would be liable for the reasonable costs associated with recovering the debt.
Otherwise it would sit as a debt on the books in respect of that lot, and if the owner sold then that amount would be adjusted at settlement and paid to the OC.