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No. You can only recover costs associated with recovering the debt, and interest on a strata loan has nothing to do with debt recovery.
I suggest you not worry about whether the owner had reasonable grounds for an extension of time, the fact is he has been given time, and on its face the reasons he gave are not bad ones. In relation to the owner’s reasons – they can strongly believe that the world is flat, that doesn’t make it so, and a visual inspection doesn’t mean anything. The CTTT doesn’t knock an application back because the reasons given are stupid.
Assuming you want to see this through (I would) then you need to concentrate on putting your case. From what you have said it sounds like you have a good case, but strange things can happen at the CTTT, so make sure you have as much to back you up as possible. When I suggested that you consult an acoustics expert I meant an acoustics expert, rather than a floor company. I think somewhere else on this forum Jimmy gave some details of people who do this?
You mentioned that your solicitor has to travel, can you use one who is actually more local to cut costs?
Re a directions hearing – that is just a preliminary to the hearing of the appeal, it lays the groundwork for the actual appeal.
Yes there are slobs everywhere and in a community situation that slobbiness is only magnified.
There is no reason why you should be taking the bins out, unless you want to enter into an agreement to be paid by the OC for doing that service. There is no way you will get the other residents to agree to take the bins out, and even if they did, they wouldn’t. In terms of tenants there is nothing requiring them to take bins out, they are paying rent and in a strata I think it is reasonable to expect that that sort of thing would be taken care of, just as cleaning the common areas would be.
The simple answer is to employ someone to do it. That is what we do, and the person who does it also washes the bins out, because smelly bins are horrible. There are lots of people around who do this sort of thing, just do an internet search or ask your strata manager.
A directions hearing is where the parties go in front of the judge/adjudicator and the judge/adjudicator discusses the progress of the appeal and give directions to the parties about how they should proceed. So the substance of the case isn’t heard/considered.
If an appeal is lodged out of time the person has to give reasons why. As it has been accepted you may have to presume either that it was lodged on time or reasons were given, bearing in mind this was over the summer break.
It sounds like you are really being put through the mill. I strongly recommend that you continue to use your strata lawyer, you have come this far. There is no guarantee of what the outcome will be but it does sound like you have a good case.
Did you consult an acoustics expert?
I would like to say I can’t believe it, but I can, that advice is just plain stupid. Following that logic, successors in title would never be bound by the by-laws of a strata scheme, unless they had specifically consented to them.
The whole point of by-laws is:
– in the case of a general by-law the majority rules, if the requisite number vote for it that is the by-law.
– by-laws bind successors in title.
Aside from that, general by-laws don’t require the consent of each owner. It is exclusive use by-laws that require specific consent of the relevant lot owner, and in that case a successor in title is bound by that consent.
I was also puzzled by the advice given by Fair Trading re how to deal with rogue parkers. Why should the owners have to wear the cost of putting up gates and electronic scans etc., to deal with something that is illegal?
In the case of issues of validity of title, that applies to any type of property, it is not limited to strata. From your story it sounds like whomever did the conveyancing had no idea what they were doing, as a check of the title records would have shown any interests such as a mortgage.
I certainly agree that it is surprising how many people buy property (and not just strata) without doing even basic checks. I don’t necessarily think that it is more important to do those checks if you are buying into strata, but certainly there are a number of additional elements to throw into the mix, including what the co-owners are like, whether it is primarily owner occupied or the apartments are largely rented out and the absentee owners don’t care what happens.
It is worth bearing in mind that even if you do the most thorough checks of strata records it is highly likely that there will be issues that are “off the books”, and you won’t find out about them until you are actually in the place, so PeterC makes a good point.
Looking back now, I sometimes wonder if I knew what I know now about our scheme whether I would have bought my place – the answer is probably yes, as the good things outweigh the bad things. I agree with all the points Jimmy makes, and personally I would be reluctant to buy into a recent development unless I was absolutely sure re defects etc.
It sounds like you have an interesting secretary. Do you have a strata manager?
You say that the secretary passed and registered the by-law, was the by-law approved by the owners at a general meeting? The secretary can’t approve a by-law by themselves so if that is what they did, the by-law would not be valid. However, if it has been registered you need to get on to it because after 2 years it may be hard to challenge.
If I were you while this purported by-law is in place I would just ignore it, as you say there is no law preventing email between people and if it went to a Tribunal it would be likely to be struck down, depending on how it is drafted.
Yes – strata managers have to have a licence and are governed by the Property Stock & Business Agents Act, refer link below. The provisions that relate to strata managers are pretty general and are primarily regarding accountability re money held on behalf of the OC, and things such as records.
I have thought for a long time that there should be some more specific laws governing strata managers. You don’t want to go overboard but from my experience there are some naughty ones out there.
https://www.legislation.nsw.gov.au/fullhtml/inforce/act+66+2002+FIRST+0+N
This kind of thing drives me crazy, both with people moving in moving out. A person who moved in a while ago thought it was ok to just dump all his moving debris (boxes etc.) and miscellaneous building materials in the courtyard – someone else’s problem. I was reduced to taking photos of the mess and dumping a number of items on his doorstep.
There are a few things you can do:
– as kiwipaul says, bill the owner of the lot for removal of the rubbish left by tenants. We do this – it is important to notify the managing agent when the stuff is dumped so you have a record and bear in mind you can’t force them to pay, or it is hard to. However when the lot is sold that amount is adjusted at settlement so you will get the money in the end. We did that with one owner whose tenants kindly left an old mattress in the entrance to the building.
– put up a sign saying anything left on common property will be considered abandoned, and will be disposed of.
When we have council clean-up we put out a notice saying that anything found on the common property will be removed, it is amazing what happens when you do that.
– I have a friend who lives in a company title block, their constitution provides that anyone who lets out their lot is required to pay an additional amount of bond money to the company, which is held as surety against having to meet costs like this. You can also use that money for damage to the common property caused by people moving in and out.
You could consider introducing a by-law to provide for the same sort of thing – legally I don’t know how this would fly, and it could be difficult to get passed where there are a lot of landlord owners, but I think it could be worth trying.
That’s weird. Not surprising, but weird.
An EC member can’t unilaterally instruct lawyers on behalf of the OC without the authority of the EC, i.e. a resolution of the EC. You would expect to see the proposed resolution on an EC agenda, with notice given, and then a resolution of the EC minuted etc. etc. The only exception to that might be if it were really urgent, say you were trying to get an interim order.
So on its face it raises questions about whether there has been any authority to instruct the lawyers, in which case who is responsible for the lawyer’s bill. It looks like the strata manager has paid the bill, but I would be asking him why.
How much was paid, because Whale is correct re how much the EC can authorise re legal expenditure.
When we have sought legal advice we have been really careful to pass the correct resolution and delegations, so it is absolutely clear. We backed that up with a further resolution at the AGM.
If the EC member has been purporting to give instructions on behalf of the OC, then they can’t claim privilege, because you are part of the OC.
1. Any strata notices to the owner should be sent to the name and address on the strata roll. The owner can put whatever details she likes on the strata roll, and that is where the notices go. Privacy has nothing to do with it.
There is one address for service of notices, that is the address on the strata roll. It is not up to the OC to send notices to addresses other than those on the strata roll and in practice that would create a lot of problems.
If the owner wishes to appoint the strata manager as their agent for the purposes of receiving strata notices, that is a matter between the owner and the strata manager. That is, she could enter into an arrangement with the strata manager to have his addresss on the strata roll and forward the notices on to her address, and she can pay him to do that.
There is no requirement for you to add an extra four days notice, provided you send the notices to the address on the strata roll, nor is it up to the OC to meet additional costs because, quite frankly, someone is being a pain in the neck.
(sorry, but this sort of thing makes me really cross)
2. In relation to the documents on the legal file, as a general rule privileged documents are those between a solicitor and client where the purpose of the documents is for the giving of legal advice, or communications between a client, solicitor and other persons for the dominant purpose of anticipated or exisiting litigation.
What are the documents? It doesn’t sound like they fall into the category of privileged documents. If they were, why would the EC member have given them over? Note you also have to claim privilege to keep it.
If they are just basic documents and they did originally come from the EC member, which is what they sound like as they were provided for research, then just copy them and give back the originals.
Your neighbour sounds like a real gem, not. They can send you all the emails they like, but there is an order requiring them to do something, and they haven’t appealed that order.
If it were me, I wouldn’t enter into any correspondence with the owner other than to remind them of the order and that there are penalties for failing to comply with the order of an adjudicator, and that you will pursue the matter if they don’t meet the terms of the order.
The ‘root problem’ is that the underlay is insufficient, as set out in the adjudicator’s orders. Whether installing Regupol or carpet with underlay will be sufficient to solve your issue can probably only be answered by an expert on matters like that. I am not sure if you have consulted anyone on that and it may be a good idea if you do. The Regupol is good, but it won’t completely do away with all noise. So it depends on what you want. Perhaps you need to ask for what you really want after seeking expert advice, and go from there. But don’t let your neighbour dictate the terms, they are the ones with an order against them, not you.
Yes everyone has the right to use common property, but not to store personal items. If someone leaves a bike in the foyer, does that mean I can leave a piece of furniture, or a suitcase? If a scheme wants to allow it, fine, but you are likely to end up with a very messy property.
1. Yes it is possible.
2. If you have perpetual exclusive use, I am not sure why you would do it, the process is expensive and complicated. I don’t think it affects value greatly, taking into account this is an area under your lot.
You don’t say what you are using the lower space for, but I presume you are using it within the terms of Council approval? That can affect the value, if someone is using a space in a way that has not been approved, and then tries to sell it and someone checks.
3. The process involves you purchasing the freehold to that part of the common property, which entails preparation of a plan of subdivision and reallocation of common property. This is expensive and you would bear those costs.
4. Yes it does affect unit entitlements, you would expect there to be a reallocation of unit entitlements, as you would have entitlement to a greater area. You would also have to bear the costs of that.
5. You would require the approval of the other owners by special resolution, i.e. 75%.
Conflict of interest is a universal governance issue, it doesn’t just apply to strata, it is up to individual schemes to determine how they deal with it. If you are concerned about how these matters are handled, one approach is to have the EC adopt a conflict of interest policy that sets out how it deals with it. There are plenty of examples on the internet on which you can base a policy.
Personally, I do have an issue with an EC member having a direct interest in the provision of services to the scheme. While it can work, and may in some instances cost less, it can create problems. For example, if a lot owner provides building services and there are defects that may lead to litigation. I agree with Whale and PeterC that in many instances an EC member may be doing the right thing, as it benefits them as an owner, but it can be tricky.
Two of us on the EC are in professions that could be used by the OC, but we would never offer to supply any services, because we would be worried about liability.
Certainly an EC member who is quoting should not have access to other quotes, because they are may use that confidential information for their own personal benefit. Similarly they should not vote and should absent themselves when the vote is taken.