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I thought it was the owner’s balcony, and the OC is accessing it to effect repairs to items that are their responsibility, i.e the tiles.
Regardless, an OC can enter into a lot to carry out necessary repairs.
Nuisance is interference with a person’s enjoyment of their property, and that includes a range of things such as noise. Nuisance may also include disturbing someone’s mental wellbeing.
So if someone is using a lot in a way that causes a nuisance to another owner, and the owner is put on notice that they are doing that, and does nothing about it, then I think you could take action against the owner in relation to that.
Ideally a tenancy agreement would include clauses to the effect that the tenant cannot do anything that would be a breach of the by-laws and/or the Act. In that way the owner would have an enforcement tool.
I don’t know, I can see both sides here. A scissor lift is going to be very unwieldy, getting tiles and concrete and stuff up there. And it will cost more (a cost that will be borne in part by the owner) and likely extend the time of the project.
However, providing blanket access to your entire unit for the works is also a big ask – it does happen every now and then, with owners having to move out. Whale’s suggestions re the conditions you might apply if access is gained internally are good ones.
I think the test the CTTT would apply in a case like this is, what is reasonable?
I am more concerned re ongoingissue’s comments re the contractor as it does sound a bit dodgy and on its face the OC is motivated by cost rather than doing the job properly. Did you put up any alternative contractors to do the job?
The reason all the documents in your application is provided to the other owners is because any interested party can make a submission regarding your application.
You needed to include the information you did to make a comprehensive submission, so don’t worry about it.
In terms of the adjudication process, you don’t have to do anything now – a decision is made “on the papers”. That is, the adjudicator reads the submissions received and makes a decision based on those. All you can do now is wait. The only exception would be is if someone made a submission more than 3 days before closing date, in which case you would be provided with it and you could make a further submission.
It can take quite a while for a decision, we had one recently and it was over 2 months.
It was 2 years ago and $750, are you willing to spend the time and energy pursuing it? I don’t necessarily think you are wrong, but is it worth it.
You can claim that expense on your tax if you are renting the property out.
Yes, you can put up a motion for inclusion in a notice of meeting which can say anything. A couple of things:
– that doesn’t necessarily mean that it has to be included in the meeting agenda. There was a recent case that held that there is no obligation to include something that is essentially a recitation of grievances for example.
– if the CTTT didn’t order that something be done, then the motion is misleading to that extent. I wouldn’t be so worried about a prospective buyer as I would about the owners who are voting on the motion. It raises the question if the resolution is then passed, as to whether the resolution is valid (because the information contained in the resolution was incorrect) It may be that the resolution would have been passed anyway, but that turns on each circumstance.
In this case I think the strata manager and the EC member are pushing the boundaries – they are both in a position to know that the resolution/notice on its face is misleading. That raises questions about their conduct. In the case of the strata manager, they put the agenda together and review all the motions, so I would expect if they came across something that was wrong in terms of facts stated, that they would draw that to the attention of the person putting up the motion.
That leaves the question of the EC member and why they would do that. You are in a better position to know that.
RJ Smith says he has a second car space. If he does, as distinct from being allowed to use a visitors car space, then surely there should be a second clicker for the second car space? That would make sense – one car space – one clicker.
If it is just access to visitors carparking that is a different matter.
This is interesting:
Particularly the last paragraph.
Conclusion
At first glance the decision seemed to absolve the Owners from providing a lot owner with an upgrade that was required to service their lot(s) properly. However, under closer scrutiny the case was more in the nature of a dispute between an owners corporation and a lot owner trying to have the owners corporation bear the costs associated with providing services required as part of changes in their lot(s) to their benefit. Whilst the relevance of the case (like many) will depend on the specific facts, it does provide some useful guidance for owners corporations as to how the courts are likely to deal with such issues in the future.
My understanding, based on discussions with structural engineers and consultants in relation to compliance with the Building Code is as follows.
You are not under an obligation to actively bring a building, or part of a building up to code. For example, you may have a building that was built in 1930 or 1970 in accordance with the Building Code that applied at the time. The Building Code changes all the time, you can’t expect buildings to comply with every single aspect of something that keeps changing.
However if you do work on a building, or make improvements or alterations to it, then anything related to that work has to comply with the Building Code, to the extent that that is possible. If something reaches the end of its life and has to be replaced then it has to be replaced with something that complies with the Code.
In your case the fact that someone can smell a lot of cooking coming from another unit doesn’t mean that the ventilation is not up to code. It may mean that the occupant of the unit cooks very smelly things, or that they don’t turn the fan on, or that the person complaining is very sensitive to smell. It may also mean that the fan is not working as well as it should.
The BCA standard for kitchen ventilation is:
a fan capable of a minimum extraction capacity of 50 litres per second when installed
(emphasis added)
The fan may have that extraction capacity, perhaps it could be checked. One thing I would ask the complainant is how they are so sure that the fan is not up to code, because the fact that they can smell something does not mean that the fan doesn’t meet the standard. I certainly don’t think that it is up to the OC to investigate every single thing like that, perhaps a good start would be talking to the occupants of the unit about what they are cooking and whether they are actually using the fan?
The residual question is whether the fan is the responsibility of the OC. In our scheme the owners have all changed their fans over time and they are responsible for them.
It is settled law in the sense that the Court of Appeal, which is the superior/ultimate court in NSW, has ruled that that is the position. Jimmy is right, what was decided before is no longer relevant. If that case went before the Supreme Court now it is probable that the result would have been different, because of the Court of Appeal decision.
Yes your lawyer friend is right – there is no such thing as settled law to the extent that any principle/judgment can be challenged in a number of ways. It could be appealed to the High Court, or there may be another Court of Appeal decision that overrules some or all of what was said in the decision.
However – the courts below the Court of Appeal are bound by the decision, and have to follow the principles enunciated in it. How they interpret those principles is another question.
The “real lawyers” can’t tell you what will happen in any particular case because they never can – every case turns on its facts and how the law is interpreted as it applies to those facts. A lawyer can tell you what the law is and how they think the law will be applied, but that doesn’t mean that is what will happen.
It’s never simple, every scenario is different. That is why there is no definitive answer.
I don’t think you can say that failure to maintain common property will allow an owner to claim damages and compensation, as Ms Hoskinson Greene states:
a breach by the Owners Corporation of its statutory duty to…maintain, repair, renew or replace common property does not give rise to an action for damages for breach of statutory duty on the part of…individual lot owners.
What the judgment says is that the remedy available in the event of a failure to comply with section 62 is prescribed by the Act, and therefore the Act circumscribes the consequences that flow from a breach of section 62.
If you look at it another way, if the intention was that damages should flow from a breach, then the Act should say that (note the CTTT doesn’t have the power to award damages).
It is worthwhile reading the case to understand the context – here you have an owner who wanted ventilation to two of his lots. The OC didn’t refuse until considerable time and effort had been spent trying to find ways of fixing the problem. So it is not a case of the OC refusing to do anything. On my reading of the case it was the owner who was more intractable, because he only wanted to use the two lots for specific purposes and have ventilation supplied to those lots at very specific standards.
I am not so sure if this would let parties off the hook who were party to a breach of section 62 and were negligent. You could possibly take action against them personally, and if they were negligent they would not be covered by insurance. In the case given of an EC failing to fix a wall in danger of falling down, yes I think you would have a very clear civil claim against the individuals on the EC, as distinct from the OC.
In these circumstances, whomever the buyer is wouldn’t have to worry about OC approval once they had bought the unit, because they didn’t put the staircase in. The OC can only take action against the person who did it. That still leaves the lack of Council approval.
I would still be wary, just because I can’t stand things being a bit uncertain. I am familiar with one case where an owner did not get Council approval for a certain type of use of their lot. This has caused both them and the OC a lot of grief over a considerable period of time, and in the end the owner has had a large amount of value sliced off their property.
I wasn’t picking on you Whale, I think you are fab, bless your blowhole. And the advice you have given is spot-on as usual.
It’s just one of the ironies of our over-engineered life, someone comes in, hacks up the property to install something, and then can make a fuss if you touch their stuff. Kafka would have a field day.
That said – I think there is a difference between someone’s car parked on the property or items left on the common property – in those cases they are not installed with consequential damage to the common property, and are capable of simple removal.
It’s funny isn’t it – it’s ok for them (Foxtel) to vandalise/damage your property, but woe betide you if you touch theirs….