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He doesn’t say anything of the sort mini – in that post he says:
One of those distinctions is between “retrospective” application of a new law to past events, and the “saving”, or continued operation of old law to new events. There is fairly common tendency to conflate the two concepts .
That is precisely what you have done. Also the discussion is in relation to someone who got approval, but didn’t get a dog, and then the old by-law was replaced with one that prevented keeping of animals. Mr Russell’s view was that the consent under the old by-law no longer applied because of that. The person would have had a right accrued under the old by-law, if they had brought a dog in in reliance on the consent under the old by-law.
I have mentioned before that it is very dangerous to copy slabs of decisions taken from another context and apply them to another scenario. It is not helpful and conversely is very confusing for people who come here looking for advice.
I don’t think you have read White v Bettali very carefully – it says that the limitations on the kind of regulations that may be set by by-laws arise from the statute that permit them to be made. I don’t think it was ever the intention of the legislature that strata law could be used to prescribe the exact removals company that may be used by a resident.
In relation to pets, that is not correct mini and is established law. If an owner is keeping a pet in compliance with the prevailing by-law the OC cannot then pass a a by – law preventing them from keeping the pet. If you come into a scheme relying on the basis of pets being allowed, the OC can’t change that so that you have to remove that pet.
However if the pet dies you would not be able to bring another one in.
I don’t believe an OC can mandate the tradespeople residents can use, i.e they must use a particular one.
I am assuming there is no exclusive use by-law in place or anything else covering those works? If there is the answer, would be different.
You didn’t carry out any works to the common property, i.e. they were done by a previous. In the absence of a by-law making the owner of the lot responsible for the works, you aren’t responsible for them, the owners corporation is, insofar as they are common property. So if they are concerned about them they have to fix them.
I suggest you ask them for a copy of the by-law/s that require you to do what they are asking.
(which is what you have done, but try again)
No-one has suggested that that by- law is invalid.
Yes that’s right – the problem here is the executor and the beneficiary are the same person.
That’s right – a proxy can’t assign a proxy. The executrix – in that capacity – is not the legal owner of the property, the estate is.
She can decide not to transfer the property to herself and continue to claim a pension, and avoid land tax (although this may catch up with her), but there is no reason why you should assist her in that. I would say the opposite applies
mini – the High Court case you cite is a contract case which considers the principle of quantum meruit.
The Swan case dealt with an owner making unauthorised repairs to the common property, where it was held that the expenses were not recoverable as a loss attributable to a breach of duty, i.e. the OC did not breach its duty, and it is up to the OC to determine how the common property is to be repaired. The reverse does not apply – the OC is not telling the owner how to repair his property, they were simply investigating the source of a leak.
Neither of those cases is relevant to this issue. It is very dangerous to take parts of decisions from different fact scenarios considering different legal principles, and applying them to something like this.
The issue here is quite simple – if you have something in your lot that is faulty that affects the common property, are you liable for the expenses in both investigating and repairing the fault? I would say yes – if you are liable for the repair, you are liable for investigating the source of the fault.
You are making payment for the levies in advance.
If you were paying for something in respect of the past, there would have been an adjustment of the amount owing on the property at settlement.
As it is, the proxy is invalid. It should be in the capacity as the executor of the deceased estate, with the relevant documentation attached, such as the will and/or grant of probate etc.
Otherwise, the proxy could be in favour of that person as the person who has the beneficial interest in the property, but again it would have to have the relevant documentation attached, and it would have to be signed by the executor who is the same person so that would be pretty circular.
In terms of transfer of the property, I don’t think there is necessarily a time limit. However, the executor of the estate wouldn’t be doing their duty if they didn’t take steps to effect the transfer, so query why that hasn’t been done.
The executor hasn’t done it right, as the transfer into her name hasn’t been done, she should have just advised that the person was deceased so it could be noted that the property was currently held by the estate. The strata roll should reflect the certificate of title, subject to any interest that has been notified.
That’s a tricky one. The leak was coming from your unit, and someone was called out to investigate it. The fact that they didn’t do any repairs is neither here nor there, they still did something.
On balance I would say that you may be responsible, given that the leak was coming from something that is not common property. However others are free to disagree with me.
That’s because the CTTT is no longer, NCAT decisions are here.
https://www.austlii.edu.au/au/cases/nsw/NSWCATCD/
By the way Austlii is funded by contributions, it is not a Government site, so you have to be patient re updates.
bubbles – in respect of your question as to who you send the letter to, you address it to the Owners Corporation and send it to the strata manager. If you like, you can also send a copy to the Secretary.
That’s fine, I suggest you stick to the position for now of saying you won’t comply with any resolution re removal of the stairs for now, and that you won’t sign any by-law.
More generally:
– stairs are not ladders and ladders are not stairs. They are two very different things. So for example if development consent were given for a ladder, that is not development consent for stairs.
– from the information you have given, it seems that the Council has never given approval for stairs. The statement on the Council file saying building work has been completed satisfactorily is not relevant to the stairs. The only document that you can rely on in relation to approval is approved plans, and any modifications and subsequent development approvals.
– the fact that you were sold the villa without a certificate is also irrelevant. When someone buys a property they should make their own enquiries, which would include inspection of council records, to ensure that what they are buying is ok, i.e. has Council approval etc.
As for the role of the OC – they are not a planning authority. It is not up to them to determine whether something is legal or not – only Council can do that. They can pass any resolution they like, but they can’t say whether something is legal or not. Ultimately that decision rests with the relevant authority which is the Council. Note that you could apply for approval from the Council now, although they may require alterations to bring what you have within scope of requirements.
You are right that the OC can make your life difficult, but there is another aspect to this – if the stairs are illegal, then the OC may be liable for any damage or injury that results from something going wrong, taking into account that they are aware there is an issue. As an owner you are also liable, and bear in mind that insurance may not cover the OC in circumstances where they are on notice of an issue and do nothing about it.
What a mess.
The short answer to your question is no, the OC can’t force you to remove the staircase, they don’t have the power to do that themselves. For example they could pass a resolution that an owner must remove the stairs, but they can’t enter the lot and remove them, and if the owner did not remove them, then they have to take further steps to enforce the resolution.
There are a number of things that may compel an owner to remove the staircase in these circumstances:
1. an order of an adjudicator or the Tribunal
2. a Court order (although I am not sure which Court would have jurisdiction)
3. a Council order.
In the third case, the OC would have to lodge a complaint with Council that a lot had illegal stairs, that the stairs were in breach of Council requirements and requesting that the Council take enforcement action. Then the Council would have to decide to take that action and issue an order for removal of the stairs.
In certain circumstances the owner may be able to appeal a decision to make an order.
I am baffled by the Council refusing copies being made on the basis of copyright law, I have never had that issue with our Council. There was a High Court case in 2007 which confirmed that an owner of a property could use plans forming part of a development consent, even though that owner was not the architect’s client. Copying plans on file at the Council would constitute reasonable use.