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One thing you could consider, especially if the owner is giving misleading information to prospective buyers, is to get a lawyer to send a letter telling them to desist or you may take action against them if they interfere with or impede your selling campaign in any way. That usually scares them off, and is worth the small investment.
Very short-sighted really, the higher the price you get, the more their place is worth, plus they are getting rid of you!
No there isn’t really, because it is common property and no-one other than the owners collectively can decide how it is to be used, and the conditions attached to that use. If you are granting exclusive use to one or more parties then the other owners have a say in that, as it is their property.
If you didn’t put in a by-law there would have to be a licence or lease to set out the terms and conditions, and you would also have to determine what was done with the fees, which belong to the OC.
There are a number of risks, including liability for anything that happened as a result of items stored there, which would fall to the OC in the absence of provision to the contrary. That is why you need a formal agreement.
It might not seem fair when you first look at it, but it is fair that if someone’s lot is damaged due to a defect in common property or something that is OC responsibility, then the OC has the responsibility of fixing it.
The only reason that certain owners have to have their bathrooms repaired/renovated is because of something for which the OC is responsible. In the case of owners who aren’t affected, they have a choice as to whether they renovate or not. The owners with damaged lots don’t have that choice.
You can draw an analogy with insurance. You pay insurance to cover you for the possibility of having to make a claim on it, but you may never have to. Your premiums are paying for the people who do make claims. Obviously that is not quite the same situation, but the other thing is that when you buy into strata you accept that you are responsible for things like this.
It’s not quite clear whether the movement you refer to is something like an earthquake or a natural occurrence, in which case as kiwipaul suggests you should check your insurance policy.
Step 1 – ask the interior designer for the work order/brief that was provided to them asking them to do the work, i.e. the contract.
If there isn’t one, then they may have some difficulty in claiming the money.
Note that the terms of any contract determine who owns the work.
Step 2 – check with the strata manager whether there are minutes/a record of the previous EC resolving to retain the interior designer to do the work, including the amount of money.
Step 3 – if there is no record of it, then it is a question of whether the EC and/or the Chair had the authority to instruct the interior designer. If they didn’t, then they may be personally liable for the account (if that account is valid).
Does the OC have a provision in place limiting the amount of expenditure that the EC can authorise? This is a standard resolution at every meeting. If there is a limit in place, then they didn’t have the authority.
From what you have said it sounds like the Chair was acting on their own, in which case that person may be liable for the account, if they didn’t have the authority.
More generally, it sounds like the interior designer is having a bit of a try on. $20,000 is a lot of money if there is no scope and no agreement in place. I have a friend who is an interior designer and if you are going to charge that amount you would have a full scope of works with a quote, including the terms, that you would then get the other party to sign before you went ahead with the work. The fact that they did the work is irrelevant, someone could come along and paint a building without being asked to and then send a bill if that were not the case.
Whale is right, just one thing to add re the process. From what you have said it would require Council approval. To put in a DA with the Council the owner has to seek approval from the OC with the Development Application, which would include all the specifications etc. Where the OC approves that, the common seal is then affixed to the DA so the Council knows that it has been through that stage.
So one suggestion is that the owner should be asked to submit their DA to the Owners Corporation for approval. If I were an owner I wouldn’t approve it unless that was provided, not least of all because the plans could change.
Luke – it isn’t a lot of work for the manager or the EC/OC, or it shouldn’t be. The onus is on the owner, they are the ones who want it, they have to do the work.
Why would every lot owner need one special by-law every year? That’s a lot of renovation going on.
Yes we have, when we had to get a lawyer to advise on sacking our strata manager for incompetence.
We convened an EC meeting and resolved to seek legal advice, based on a cost estimate. You can then subsequently resolve at a GM. You don’t need a work order.
No they don’t have to cast a vote for the maximum number, they can just vote for 5 if they want. Their “non-votes” would be recorded as “abstain”.
That’s right – but whatever the space it has to be suitable for its purpose. If a car in a garage is being damaged then it follows that it is not fit for purpose and the space has to be brought up to the appropriate standard, which is not necessarily BCA.
I don’t necessarily disagree with strata loans, although in general I am not keen on them, they may have a place in certain circumstances.
In terms of Why Borrow? You refer to it being an enabler, i.e. to allow the OC to do something it otherwise can’t do. The OC has an obligation under the Act to maintain the property, it doesn’t have a choice. One thing I like about requiring contributions to be made to the sinking fund is the psychological effect, many owners don’t realise or don’t want to realise that they have an obligation to maintain and upgrade as necessary, and make sure they have funds set aside for that purpose.
This is not legal advice, but I believe there would be an implied term in any residential tenancy agreement that the premises are habitable. That sort of thing goes to the heart of the contract.
Even if they had renovated, the premises are not habitable in their current state, once you had notice of that you should have moved out.
The answer to your primary question, is it illegal to collect rent on a property deemed illegal is – it is illegal to permit/allow anyone to occupy a space that is not a habitable space, and has been declared so by Council. To that extent the issue of rent is irrelevant, because if someone is told that property they own is not habitable, then they can’t allow anyone to live there. The consequences of doing so can be very serious.
If you rent a non-habitable space to someone and there is a fire for example, and the person is injured or dies, the landlord can be held criminally liable.
You are in a unenviable situation and I feel for you, but Whale is right, you need to get out now. If the landlord doesn’t get you out the Council may do so.
I am not so sure re the financial side of things, you continued to pay rent after you knew the place was uninhabitable.
Just to clarify JGOWI’s comment, no – because exclusive use is not temporary and/or non-recurring.
I agree with mattb, and the notice has got nothing to do with it – as mattb has pointed out, and you say you told the tenant 2 months before.
Also, the tenant told you they were moving out because of the works, but that may not be true. We did some major works some time ago, and a tenant moved out in the middle of them. The owner then told us that we were responsible for them moving out, and I said well that’s interesting, because the tenant told me he was moving out because he was moving to Melbourne…..
That is such good news, CONGRATULATIONS!